EXHIBIT 4.1
XXXXXX INDUSTRIES, INC.
AS ISSUER
AND
XXXXXX INDUSTRIES LTD.,
AS GUARANTOR
AND
BANK ONE, N.A.,
AS TRUSTEE
INDENTURE
DATED AS OF
AUGUST 22, 2002
SERIES A AND SERIES B
5.375% SENIOR NOTES DUE 2012
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.................................................
SECTION 1.02. Other Definitions...........................................
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...........
SECTION 1.04. Rules of Construction.......................................
ARTICLE II
THE SECURITIES
SECTION 2.01. Form and Dating.............................................
SECTION 2.02. Execution and Authentication................................
SECTION 2.03. Registrar and Paying Agent..................................
SECTION 2.04. Paying Agent to Hold Money in Trust.........................
SECTION 2.05. Holder Lists................................................
SECTION 2.06. Transfer and Exchange.......................................
SECTION 2.07. Replacement Securities......................................
SECTION 2.08. Outstanding Securities......................................
SECTION 2.09. [Reserved.].................................................
SECTION 2.10. Temporary Securities........................................
SECTION 2.11. Cancellation................................................
SECTION 2.12. Defaulted Interest..........................................
SECTION 2.13. Persons Deemed Owners.......................................
SECTION 2.14. CUSIP Numbers...............................................
ARTICLE III
COVENANTS
SECTION 3.01. Payment of Securities.......................................
SECTION 3.02. Maintenance of Office or Agency.............................
SECTION 3.03. SEC Reports; Financial Statements...........................
SECTION 3.04. Compliance Certificate......................................
SECTION 3.05. Corporate Existence.........................................
SECTION 3.06. Waiver of Stay, Extension or Usury Laws.....................
SECTION 3.07. Limitation on Liens.........................................
SECTION 3.08. Payment of Additional Amounts...............................
SECTION 3.09. Limitations on Sale and Lease-Back Transactions.............
ARTICLE IV
CONSOLIDATION, MERGER AND SALE
SECTION 4.01. Limitation on Mergers and Consolidations....................
SECTION 4.02. Successors Substituted......................................
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default...........................................
SECTION 5.02. Acceleration................................................
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SECTION 5.03. Other Remedies..............................................
SECTION 5.04. Waiver of Existing Defaults.................................
SECTION 5.05. Control by Majority.........................................
SECTION 5.06. Limitations on Suits........................................
SECTION 5.07. Rights of Holders to Receive Payment........................
SECTION 5.08. Collection Suit by Trustee..................................
SECTION 5.09. Trustee May File Proofs of Claim............................
SECTION 5.10. Priorities..................................................
SECTION 5.11. Undertaking for Costs.......................................
ARTICLE VI
TRUSTEE
SECTION 6.01. Duties of Trustee...........................................
SECTION 6.02. Rights of Trustee...........................................
SECTION 6.03. Individual Rights of Trustee................................
SECTION 6.04. Trustee's Disclaimer........................................
SECTION 6.05. Notice of Defaults..........................................
SECTION 6.06. Reports by Trustee to Holders...............................
SECTION 6.07. Compensation and Indemnity..................................
SECTION 6.08. Replacement of Trustee......................................
SECTION 6.09. Successor Trustee by Merger, etc. ..........................
SECTION 6.10. Eligibility; Disqualification...............................
SECTION 6.11. Preferential Collection of Claims Against Company...........
ARTICLE VII
DISCHARGE OF
INDENTURE
SECTION 7.01. Termination of Company's and Guarantor's Obligations........
SECTION 7.02. Application of Trust Money..................................
SECTION 7.03. Repayment to Company........................................
SECTION 7.04. Reinstatement...............................................
ARTICLE VIII
AMENDMENTS
SECTION 8.01. Without Consent of Holders..................................
SECTION 8.02. With Consent of Holders.....................................
SECTION 8.03. Compliance with Trust
Indenture Act.........................
SECTION 8.04. Revocation and Effect of Consents...........................
SECTION 8.05. Notation on or Exchange of Securities.......................
SECTION 8.06. Trustee to Sign Amendments, etc. ...........................
ARTICLE IX
GUARANTEES OF SECURITIES
SECTION 9.01. Unconditional Guarantees....................................
SECTION 9.02. Execution and Delivery of Notation of Guarantees............
ARTICLE X
REDEMPTION
SECTION Notices to Trustee..........................................
10.01.
SECTION Selection of Securities to be Redeemed......................
10.02.
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SECTION Notices to Holders..........................................
10.03.
SECTION Effect of Notices of Redemption.............................
10.04.
SECTION Deposit of Redemption Price.................................
10.05.
SECTION Securities Redeemed in Part.................................
10.06.
SECTION Optional Redemption.........................................
10.07.
ARTICLE XI
MISCELLANEOUS
SECTION Trust
Indenture Act Controls................................
11.01.
SECTION Notices.....................................................
11.02.
SECTION Communication by Holders with Other Holders.................
11.03.
SECTION Certificate and Opinion as to Conditions Precedent..........
11.04.
SECTION Statements Required in Certificate or Opinion...............
11.05.
SECTION Rules by Trustee and Agents.................................
11.06.
SECTION Legal Holidays..............................................
11.07.
SECTION No Recourse Against Others..................................
11.08.
SECTION Governing Law...............................................
11.09.
SECTION Consent to Jurisdiction and Service of Process..............
11.10.
SECTION Waiver of Immunity..........................................
11.11.
SECTION Judgment Currency...........................................
11.12.
SECTION No Adverse Interpretation of Other Agreements...............
11.13.
SECTION Successors..................................................
11.14.
SECTION Severability................................................
11.15.
SECTION Counterpart Originals.......................................
11.16.
SECTION Table of Contents, Headings, etc. ..........................
11.17.
EXHIBITS
EXHIBIT A -- Form of 10-Year Security......................................
EXHIBIT B -- [Reserved]....................................................
EXHIBIT C -- Form of Certificate of Transfer...............................
EXHIBIT D -- Form of Certificate of Exchange...............................
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THIS
INDENTURE dated as of August 22, 2002, is among Xxxxxx Industries,
Inc., a Delaware corporation (the "Company"), Xxxxxx Industries Ltd., a Bermuda
exempted company (the "Guarantor"), and Bank One, N.A., as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the Holders of the Company's 5.375% Series A
Senior Notes due 2012 (the "Series A Securities") and 5.375% Series B Senior
Notes due 2012 (the "Series B Securities" and together with the Series A
Securities, the "Securities").
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
of a Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing. The Trustee may
request and may conclusively rely upon an Officers' Certificate to determine
whether any Person is an Affiliate of any specified Person.
"Agent" means any Registrar or Paying Agent.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Security, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"Attributable Debt" means, with respect to any Sale and Lease-Back
Transaction as of any particular time, the present value discounted at the rate
of interest implicit in the terms of the lease of the obligations of the lessee
under such lease for net rental payments during the remaining term of the lease.
"Bankruptcy Law" means Title 11, U.S. Code or any similar U.S. or State law
or any similar foreign law for the relief of debtors.
"Board of Directors" of any Person means the board of directors, board of
managers (or other comparable governing body) of such Person or any committee
thereof duly authorized, with respect to any particular matter, to act by or on
behalf of the board of directors of such Person.
"Business Day" means any day that is not a Legal Holiday.
"Clearstream" means Clearstream Banking, S.A.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this
Indenture, and thereafter "Company" shall mean
such successor Person.
"Consolidated Net Worth" means the amount of total stockholders' equity
shown in the most recent consolidated statement of financial position of the
Guarantor as filed with the SEC.
"Corporate Trust Office of the Trustee" means the office of the Trustee at
which this
Indenture shall be principally administered, which office shall
initially be located at the address of the Trustee specified in Section 11.02
and may be located at such other address as the Trustee may give notice to the
Company and the Holders or such other address as a successor Trustee may
designate from time to time by notice to the Company and the Holders.
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"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or after notice or the
passage of time or both would be, an Event of Default.
"Definitive Security" means a certificated Security registered in the name
of the Holder thereof and issued in accordance with Section 2.06, substantially
in the form of Exhibit A, except that such Security shall not bear the Global
Security Legend and shall not have the "Schedule of Exchanges of Securities"
attached thereto.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"Distribution Compliance Period" means the "distribution compliance period"
as defined in Regulation S.
"Euroclear" means Euroclear Bank, S.A.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any successor statute.
"Exchange Offer" means the offer that may be made by the Company pursuant
to the Registration Rights Agreement to exchange Series B Securities for the
Series A Securities.
"Exchange Offer Registration Statement" means a registration statement
under the Securities Act relating to an Exchange Offer, including the related
prospectus.
"Funded Debt" means indebtedness for money borrowed which by its terms
matures at, or is extendible or renewable at the option of the obligor to, a
date more than twelve months after the date of creation of such indebtedness.
"GAAP" means generally accepted accounting principles in the United States,
as in effect from time to time.
"Global Securities" means, individually and collectively, each of the
Restricted Global Securities and the Unrestricted Global Securities,
substantially in the form of Exhibit A, issued in accordance with Section 2.01,
2.06(b)(iv), 2.06(d)(ii) or 2.06(f).
"Global Security Legend" means the legend set forth in Section 2.06(g)(ii)
which is required to be placed on all Global Securities issued under this
Indenture.
"Guarantor" means the Person named as a "Guarantor" in the first paragraph
of this instrument until a successor Person shall have assumed the obligations
of such Person pursuant to the applicable provisions of this
Indenture, and
thereafter "Guarantor" shall mean such successor Person(s).
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" means any indebtedness for money borrowed or representing
the deferred purchase price of property or assets purchased.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Security through a Participant.
"Initial Purchaser" means the initial purchaser named in the Purchase
Agreement, as initial purchaser of the Series A Securities in the Offering.
"Interest Payment Date" has the meaning assigned to such term in the
Securities.
"Issue Date" means the first date on which the Series A Securities are
issued under this Indenture.
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"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in any of Xxx Xxxx, Xxx Xxxx, Xxxxxxx, Xxxxx or a place of payment
are authorized or obligated by law, regulation or executive order to remain
closed.
"Letter of Transmittal" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the Securities for use by such Holders in
connection with the Exchange Offer.
"Liquidated Damages" has the same meaning as that given to the term
"Special Interest" in the Registration Rights Agreement.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Offering" means the offering of the Original Securities pursuant to the
Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum of the Company, dated
August 15, 2002, relating to the Offering.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, any Vice Chairman of the Board, any Vice President, the Chief
Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two Officers of a
Person, one of whom must be the Person's Chief Executive Officer, Chief
Financial Officer or Chief Accounting Officer or its Vice President.
"144A Global Security" means a global Security substantially in the form of
Exhibit A hereto bearing the Global Security Legend, the Private Placement
Legend and the 144A Security Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that will be issued in
a denomination equal to the outstanding principal amount of the Securities sold
in reliance on Rule 144A.
"144A Security Legend" means the legend set forth in Section 2.06(g)(iv)
which is required to be placed on all Series A Securities that are 144A Global
Securities or Definitive Securities sold to QIBs pursuant to Rule 144A.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. Such counsel may be an employee of or counsel to the
Company, the Guarantor or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Participating Broker-Dealer" means any broker-dealer that is the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of Series B
Securities received by such broker-dealer in the Exchange Offer.
"Person" means any individual, corporation, partnership, limited liability
company, limited or general partnership, joint venture, incorporated or
unincorporated association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof or
other entity of any kind.
"Private Placement Legend" means the legend set forth in Section 2.06(g)(i)
which is required to be placed on all Series A Securities issued under this
Indenture except where otherwise permitted by the provisions of this Indenture.
"Purchase Agreement" means the Purchase Agreement, dated August 15, 2002,
among the Company, the Guarantor and the Initial Purchaser.
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"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means the price at which the Securities may be redeemed,
as set forth in paragraphs 4 and 5 of the form of Securities, as applicable.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated August 22, 2002, among the Company, the Guarantor and the
Initial Purchaser relating to the Original Securities.
"Regulation S" means Regulation S promulgated under the Securities Act, as
such may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"Regulation S Global Security" means a Regulation S Temporary Global
Security or Regulation S Permanent Global Security, as appropriate.
"Regulation S Permanent Global Security" means a permanent global Security
substantially in the form of Exhibit A hereto bearing the Global Security Legend
and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Security upon expiration of the Distribution Compliance Period.
"Regulation S Temporary Global Security" means a temporary global Security
substantially in the form of Exhibit A hereto bearing the Global Security
Legend, the Private Placement Legend and the Regulation S Temporary Global
Security Legend and deposited with or on behalf of and registered in the name of
the Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Securities initially sold in reliance on Rule 903 of
Regulation S.
"Regulation S Temporary Global Security Legend" means the legend set forth
in Section 2.06(g)(iii) which is required to be placed on all Regulation S
Temporary Global Securities issued under this Indenture.
"Responsible Officer" means, when used with respect to the Trustee, any
officer assigned by the Trustee to administer corporate trust matters or to whom
any corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
"Restricted Definitive Security" means a Definitive Security bearing the
Private Placement Legend.
"Restricted Global Security" means a Global Security bearing the Private
Placement Legend.
"Restricted Securities" means "restricted securities" as defined in Rule
144(a)(3) under the Securities Act; provided that the Trustee shall be entitled
to request and conclusively rely upon an Opinion of Counsel with respect to
whether any Security is a Restricted Security.
"Rule 144" means Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of the issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
"Rule 903" means Rule 903 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"Rule 904" means Rule 904 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
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"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Guarantor or any Subsidiary of any property,
whereby such property had been sold or transferred by the Guarantor or any
Subsidiary to such Person.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Securities and the Series B Securities.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute.
"Securities Custodian" means the Trustee, as custodian on behalf of the
Depositary with respect to the Securities in global form, or any successor
entity thereto.
"Series A Securities" has the meaning set forth in the second paragraph of
this instrument.
"Series B Securities" has the meaning set forth in the second paragraph of
this instrument.
"Shelf Registration" means the shelf registration pursuant to a Shelf
Registration Statement.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Stated Maturity" means, with respect to any Security, the date specified
in such Security as the fixed date on which the principal of such Security is
due and payable.
"Subsidiary" means a corporation, partnership or other entity more than 50%
of the outstanding voting securities of which is owned, directly or indirectly,
by the Guarantor or one or more other Subsidiaries, or by the Guarantor and one
or more other Subsidiaries. For purposes of this definition, "voting securities"
means securities which ordinarily have voting power for the election of a Board
of Directors, whether at all times or only so long as no senior class of
securities has such voting power by reason of any contingency.
"Taxes" means any tax, duty, levy, impost, assessment or other governmental
charge of whatever nature imposed or levied by or on behalf of the Government of
Bermuda or by an authority or agency therein or thereof having the power to tax,
including any interest, penalties or other charges in respect thereof.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C. Sections
77aaa-77bbbb), as in effect on the Issue Date.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean the
successor serving hereunder.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America for the payment of which the full faith and credit of the United States
of America is pledged.
"U.S. Person" means a "U.S. person" as defined in Rule 902(k) under the
Securities Act.
"Unrestricted Definitive Security" means a Definitive Security that does
not bear and is not required to bear the Private Placement Legend.
"Unrestricted Global Security" means a permanent global Security
substantially in the form of Exhibit A attached hereto that bears the Global
Security Legend and that has the "Schedule of Exchanges of Securities" attached
thereto and that is deposited with or on behalf of and registered in the name of
the Depositary, representing Securities that do not bear the Private Placement
Legend.
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SECTION 1.02. Other Definitions.
DEFINED IN
TERM SECTION
---- ----------
"Additional Amounts"........................................ 3.08
"Agent Members"............................................. 2.01(b)
"Authorized Agent".......................................... 11.19
"Covenant Defeasance"....................................... 7.01(c)
"Debt"...................................................... 3.07
"DTC"....................................................... 2.03
"Event of Default".......................................... 5.01
"Excluded Holder"........................................... 3.08
"Guarantees"................................................ 9.01(a)
"Indenture Obligations"..................................... 9.01(a)
"Judgment Currency"......................................... 11.12
"mortgage" or "mortgages"................................... 3.07
"Original Securities"....................................... 2.02
"Paying Agent".............................................. 2.03
"Registrar"................................................. 2.03
"Territory"................................................. 3.08
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and the
Guarantor.
All other terms used in this Indenture, and not otherwise defined herein,
that are defined by the TIA, defined by a TIA reference to another statute or
defined by an 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 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) words implying any gender shall apply to all
genders; (6) the term "merger" includes a statutory compulsory share exchange
and a conversion of a corporation into a limited liability company, a
partnership or other entity and vice versa and (7) provisions apply to
successive events and transactions.
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ARTICLE II
THE SECURITIES
SECTION 2.01. Form and Dating.
(a) General. The Securities, any notations thereon relating to the
Guarantees and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A to this Indenture, the terms of which are
hereby incorporated into this Indenture. The Securities may have notations,
legends or endorsements required by law, securities exchange rule, the Company's
certificate of incorporation, memorandum of association, articles of
association, other organizational documents, agreements to which the Company is
subject, if any, or usage, provided that any such notation, legend or
endorsement is in a form acceptable to the Company. Each Security shall be dated
the date of its authentication. The Securities shall be in registered form
without coupons and only in denominations of $1,000 and any integral multiples
thereof. The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Company, the Guarantor and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
(b) Global Securities. Original Securities offered and sold to QIBs in
reliance on Rule 144A as provided in the Purchase Agreement shall be issued
initially in the form of one or more Global Securities in definitive, fully
registered form without interest coupons and bearing the Global Security Legend
and Private Placement Legend, which shall be deposited on behalf of the
purchasers of the Original Securities represented thereby with the Trustee, as
custodian for the Depositary (or with such other custodian as the Depositary may
direct), and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Global Securities
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee as hereinafter
provided. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Securities
represented thereby shall be made by the Trustee or the Securities Custodian, at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06. Members of, or Participants in, the
Depositary ("Agent Members") shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depositary or by the
Trustee as the custodian of the Depositary or under such Global Security, and
the Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices of such Depositary governing the exercise of
the rights of a holder of a beneficial interest in any Global Security.
(c) Temporary Global Securities. Securities offered and sold in reliance
on Regulation S, if any, shall be issued initially in the form of the Regulation
S Temporary Global Security and bearing the Regulation S Temporary Global
Security Legend, which shall be deposited on behalf of the purchasers of the
Securities represented thereby with the Trustee, as custodian for the
Depositary, and registered in the name of the Depositary or the nominee of the
Depositary for the accounts of designated agents holding on behalf of Euroclear
or Clearstream, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Distribution Compliance Period shall be terminated
upon the receipt by the Trustee of (i) a written certificate from the
Depositary, together with copies of certificates from Euroclear and Clearstream
certifying that they have received certification of non-U.S. beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Security (except to the extent of any beneficial owners thereof
who acquired an interest therein during the Distribution Compliance Period
pursuant to another exemption from registration under the Securities Act and who
will take delivery of a beneficial ownership interest in a 144A Global Security
bearing a Private Placement Legend, all as contemplated by Section 2.06(g)(i)),
and (ii) an Officers' Certificate from the Company. Following the
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termination of the Distribution Compliance Period, beneficial interests in the
Regulation S Temporary Global Security shall be exchanged for beneficial
interests in Regulation S Permanent Global Securities pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S Permanent
Global Securities, the Trustee shall cancel the Regulation S Temporary Global
Security. The aggregate principal amount of the Regulation S Temporary Global
Security and the Regulation S Permanent Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depositary or its nominee, as the case may be, in connection with transfers
of interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream" and "Customer Handbook" of Cedel Bank (as adopted by Clearstream)
and any successor, alternative or additional procedures from time to time
adopted by Euroclear or Clearstream shall be applicable to transfers of
beneficial interests in the Regulation S Temporary Global Security and the
Regulation S Permanent Global Securities that are held by Participants through
Euroclear or Clearstream.
(e) Certificated Securities. Except as provided in this Section 2.01 or
Section 2.06, owners of beneficial interests in Global Securities will not be
entitled to receive physical delivery of Definitive Securities.
SECTION 2.02. Execution and Authentication. One Officer of the Company
shall sign the Securities on behalf of the Company by manual or facsimile
signature. The Company's seal may be (but shall not be required to be)
impressed, affixed, imprinted or reproduced on the Securities and may be in
facsimile form.
If an Officer of the Company whose signature is on this Indenture or a
Security no longer holds that office at the time the Trustee authenticates such
Security or at any time thereafter, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose until authenticated by the manual signature
of an authorized signatory of the Trustee, which signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall authenticate (i) for original issue on the Issue Date
Series A Securities in the aggregate principal amount of $275,000,000 (the
"Original Securities"), (ii) the Series B Securities for original issue,
pursuant to the Exchange Offer, for a like principal amount of Series A
Securities and (iii) any amount of additional Securities specified by the
Company after the Issue Date, in each case, upon a written order of the Company
signed by one Officer of the Company; provided, however, that no additional
Securities may be issued or guaranteed if a Default or Event of Default shall
have occurred and be continuing. Such order shall specify (a) the amount of the
Securities to be authenticated and the date of original issue thereof, and (b)
whether the Securities are Series A Securities or Series B Securities. In
authenticating such Securities, the Trustee shall be entitled to receive, and
shall be entitled to rely upon, an Opinion of Counsel substantially to the
effect that such Securities, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding obligations
of the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
The aggregate principal amount of Securities outstanding at any time may
not exceed the aggregate principal amount of Securities authorized for issuance
by the Company pursuant to one or more written orders of the Company, except as
provided in Section 2.07. Subject to the foregoing, the aggregate principal
amount of Securities that may be issued under this Indenture shall not be
limited.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless limited by the terms of such appointment, an
authenticating agent may authenticate
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Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company,
the Guarantor or any of their respective Affiliates.
The Original Securities, the Series B Securities and any such additional
Securities shall each be a single series for all purposes of this Indenture,
including, without limitation, waivers, amendments, redemptions and offers to
purchase.
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or exchange ("Registrar") and an office or agency where Securities may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Securities and of their transfer and exchange. The Company may appoint one
or more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Guarantor or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying Agent.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to each Global Security.
SECTION 2.04. Paying Agent to Hold Money in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal of or premium, if
any, Liquidated Damages, if any, Additional Amounts, if any, or interest on the
Securities, whether such money shall have been paid to it by the Company or the
Guarantor, and will notify the Trustee of any default by the Company or the
Guarantor in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon payment over to the Trustee and upon accounting for any
funds disbursed, the Paying Agent (if other than the Company or a Subsidiary of
the Company) shall have no further liability for the money. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders and shall otherwise comply with TIA Section
312(a). If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least seven Business Days before each Interest Payment Date, and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Holders, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. A Global Security may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Securities will be exchanged by the Company for Definitive Securities if (i) the
Trustee receives notice from the Depositary that it is unwilling or unable to
continue to act as Depositary or that it is no longer a clearing agency
registered
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under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 90 days after the date of such notice from the
Depositary or (ii) the Company in its sole discretion determines that the Global
Securities (in whole but not in part) should be exchanged for Definitive
Securities and delivers a written notice to such effect to the Trustee; provided
that in no event shall the Regulation S Temporary Global Security be exchanged
by the Company for Definitive Securities prior to (x) the expiration of the
Distribution Compliance Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(c)(3)(ii)(B) under the Securities
Act. Upon the occurrence of either of the preceding events in (i) or (ii) above,
Definitive Securities shall be issued in such names as the Depositary shall
instruct the Trustee. Global Securities also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10. Except as provided in
this Section 2.06(a) and in Section 2.06(b)(ii) and Section 2.06(c) for the
exchange or transfer of Global Securities for Definitive Securities, every
Security authenticated and delivered in exchange for, or in lieu of, a Global
Security or any portion thereof, pursuant to this Section 2.06 or Section 2.07
or 2.10, shall be authenticated and delivered in the form of, and shall be, a
Global Security. A Global Security may not be exchanged for another Security
other than as provided in this Section 2.06(a); however, beneficial interests in
a Global Security may be transferred and exchanged as provided in Section
2.06(b), (c) or (f).
(b) Transfer and Exchange of Beneficial Interests in the Global
Securities. The transfer and exchange of beneficial interests in the Global
Securities shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Securities shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Securities also shall
require compliance with either subparagraph (i) or (ii) below, as applicable, as
well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Security. Beneficial interests in any Restricted Global Security may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Security in accordance
with the transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Distribution
Compliance Period, transfers of beneficial interests in the Temporary
Regulation S Global Security may not be made to a U.S. Person or for the
account or benefit of a U.S. Person. Beneficial interests in any
Unrestricted Global Security may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Securities. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above, the
transferor of such beneficial interest must deliver to the Depositary
either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Security in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B)
(1) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Security in an amount equal
to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Security
shall be registered to effect the transfer or exchange referred to in (1)
above; provided that in no event shall Definitive Securities be issued upon
the transfer or exchange of beneficial interests in the Regulation S
Temporary Global Security prior to (x) the expiration of the Distribution
Compliance Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903 under the Securities Act. Upon consummation
of the Exchange Offer by the Company in accordance with Section 2.06(f),
the requirements of this
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Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Securities. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Securities contained
in this Indenture and the Securities or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Security(s) pursuant to Section 2.06(h).
(iii) Transfer of Beneficial Interests to Another Restricted Global
Security. A beneficial interest in any Restricted Global Security may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Security if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Security, then the transferor
must deliver a certificate in the form of Exhibit C hereto, including
the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Security or the
Regulation S Permanent Global Security, then the transferor must deliver
a certificate in the form of Exhibit C hereto, including the
certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Security for Beneficial Interests in the Unrestricted Global
Security. A beneficial interest in any Restricted Global Security may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Security or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Security if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the
holder of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, makes the certifications required
by the applicable Letter of Transmittal;
(B) such transfer is effected pursuant to the Shelf Registration in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Security proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Security, a certificate
from such holder in the form of Exhibit D, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Security proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security, a certificate from such
holder in the form of Exhibit C, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of a
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written authentication order in accordance with Section 2.02, the Trustee
shall authenticate one or more Unrestricted Global Securities in an
aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Security cannot be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Security.
(c) Transfer or Exchange of Beneficial Interests for Definitive Securities.
(i) Beneficial Interests in Restricted Global Securities to Restricted
Definitive Securities. If any holder of a beneficial interest in a
Restricted Global Security proposes to exchange such beneficial interest
for a Restricted Definitive Security or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a Restricted
Definitive Security, then, upon receipt by the Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Security proposes to exchange such beneficial interest for a
Restricted Definitive Security, a certificate from such holder in the
form of Exhibit D, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to the
effect set forth in Exhibit C, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule
904 under the Securities Act, a certificate to the effect set forth in
Exhibit C, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit C, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to the
Guarantor or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit C, including the certifications in item (3)(b) thereof;
or
(F) if such beneficial interest is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate
to the effect set forth in Exhibit C, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Security to be reduced accordingly pursuant to Section 2.06(h), and
the Company shall execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Definitive Security in the
appropriate principal amount. Any Definitive Security issued in exchange
for a beneficial interest in a Restricted Global Security pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Securities to the Persons in whose names such
Securities are so registered. Any Definitive Security issued in exchange
for a beneficial interest in a Restricted Global Security pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C), a beneficial
interest in the Regulation S Temporary Global Security may not be exchanged
for a Definitive Security or transferred to a Person who takes delivery
thereof in the form of a Definitive Security prior to (x) the expiration of
the Distribution Compliance Period and (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903(c)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant
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to an exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Securities to
Unrestricted Definitive Securities. A holder of a beneficial interest in a
Restricted Global Security may exchange such beneficial interest for an
Unrestricted Definitive Security or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Security only if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the
holder of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, makes the certifications required
by the applicable Letter of Transmittal;
(B) such transfer is effected pursuant to the Shelf Registration in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Security proposes to exchange such beneficial interest for a
Definitive Security that does not bear the Private Placement Legend,
a certificate from such holder in the form of Exhibit D, including
the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Security proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of a Definitive
Security that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Securities to
Unrestricted Definitive Securities. If any holder of a beneficial interest
in an Unrestricted Global Security proposes to exchange such beneficial
interest for a Definitive Security or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Security, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii), the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to Section
2.06(h), and the Company shall execute and the Trustee shall authenticate
and deliver to the Person designated in the instructions a Definitive
Security in the appropriate principal amount. Any Definitive Security
issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iv) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Securities to the Persons in whose names such
Securities are so registered. Any Definitive Security issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not
bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Securities for Beneficial
Interests.
(i) Restricted Definitive Securities to Beneficial Interests in
Restricted Global Securities. If any Holder of a Restricted Definitive
Security proposes to exchange such Security for a beneficial interest in a
Restricted Global Security or to transfer such Restricted Definitive
Securities to a Person who
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takes delivery thereof in the form of a beneficial interest in a Restricted
Global Security, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Definitive Security proposes
to exchange such Security for a beneficial interest in a Restricted
Global Security, a certificate from such Holder in the form of Exhibit
D, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Security is being transferred to
a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit C, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Security is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit C, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Security is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit C, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Security is being transferred to
the Parent or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit C, including the certifications in item (3)(b) thereof;
or
(F) if such Restricted Definitive Security is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit C, including the
certifications in item (3)(c) thereof, the Trustee shall cancel the
Restricted Definitive Security, increase or cause to be increased the
aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Security, in the case of clause (B) above,
the 144A Global Security, and in the case of clause (C) above, the
Regulation S Global Security.
(ii) Restricted Definitive Securities to Beneficial Interests in
Unrestricted Global Securities. A Holder of a Restricted Definitive
Security may exchange such Security for a beneficial interest in an
Unrestricted Global Security or transfer such Restricted Definitive
Security to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security only if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, makes the certifications required by the applicable Letter of
Transmittal;
(B) such transfer is effected pursuant to the Shelf Registration in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Security proposes to
exchange such Security for a beneficial interest in the Unrestricted
Global Security, a certificate from such Holder in the form of
Exhibit D, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Security proposes to
transfer such Security to a Person who shall take delivery thereof in
the form of a beneficial interest in the Unrestricted Global
Security, a certificate from such Holder in the form of Exhibit C,
including the certifications in item (4) thereof;
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and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Security
and increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Security.
(iii) Unrestricted Definitive Securities to Beneficial Interests in
Unrestricted Global Securities. A Holder of an Unrestricted Definitive
Security may exchange such Security for a beneficial interest in an
Unrestricted Global Security or transfer such Unrestricted Definitive
Security to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Security and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Securities. If any such exchange or transfer from a Definitive Security to
a beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Security has
not yet been issued, the Company shall issue and, upon receipt of a written
authentication order in accordance with Section 2.02, the Trustee shall
authenticate one or more Unrestricted Global Securities in an aggregate
principal amount equal to the principal amount of Definitive Securities so
transferred.
(e) Transfer and Exchange of Definitive Securities for Definitive
Securities. Upon request by a Holder of Definitive Securities and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Securities. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).
(i) Restricted Definitive Securities to Restricted Definitive
Securities. Any Restricted Definitive Security may be transferred to and
registered in the name of Persons who take delivery thereof in the form of
a Restricted Definitive Security if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit C, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904,
then the transferor must deliver a certificate in the form of Exhibit C,
including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit C,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
(ii) Restricted Definitive Securities to Unrestricted Definitive
Securities. Any Restricted Definitive Security may be exchanged by the
Holder thereof for an Unrestricted Definitive Security or transferred to a
Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Security if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, makes the certifications required by the applicable Letter of
Transmittal;
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(B) such transfer is effected pursuant to the Shelf Registration in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Security
proposes to exchange such Security for an Unrestricted Definitive
Security, a certificate from such Holder in the form of Exhibit D,
including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Security
proposes to transfer such Security to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Security,
a certificate from such Holder in the form of Exhibit C, including
the certifications in item (4) thereof; and, in each such case set
forth in this subparagraph (D), if the Registrar so requests, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Securities to Unrestricted Definitive
Securities. A Holder of Unrestricted Definitive Securities may transfer
such Securities to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Security. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted Definitive
Securities pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an authentication order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Securities in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Securities tendered for acceptance by Persons
that make the certifications required by the applicable Letters of Transmittal,
and accepted for exchange in the Exchange Offer. Concurrently with the issuance
of such Securities, the Trustee shall cause the aggregate principal amount of
the applicable Restricted Global Securities to be reduced accordingly, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Securities so accepted
Definitive Securities in the appropriate principal amounts.
(g) Legends. The following legends shall appear on the face of all Global
Securities and Definitive Securities issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Security and each Definitive Security (and all Securities issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGIS-
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TRATION. BY ITS ACQUISITION OF THIS SECURITY OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER:
1. AGREES, ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT
FOR WHICH IT HAS PURCHASED SECURITIES, THAT IT WILL OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH EITHER THE COMPANY
OR ANY OF ITS AFFILIATES WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO XXXXXX INDUSTRIES LTD. OR ANY
OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN
RULE 144A, THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S,
OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH OF THE CASES ABOVE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
2. AGREES THAT, BEFORE THE HOLDER OFFERS, SELLS OR OTHERWISE
TRANSFERS THIS SECURITY, THE COMPANY AND THE REGISTRAR MAY REQUIRE THE
HOLDER OF THIS SECURITY TO DELIVER A WRITTEN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION THAT THEY REASONABLY REQUIRE TO
CONFIRM THAT SUCH PROPOSED TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED IN THIS SECURITY, THE TERMS "OFFSHORE TRANSACTION," "U.S.
PERSON" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM WITHIN
REGULATION S.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION OF THIS SECURITY THE HOLDER THEREOF WILL BE DEEMED TO
HAVE REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE ASSETS
USED BY SUCH HOLDER TO ACQUIRE AND HOLD THIS SECURITY CONSTITUTES THE
ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE
U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OF PLANS, INDIVIDUAL RETIREMENT ACCOUNTS OR OTHER
ARRANGEMENTS THAT ARE SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR PROVISIONS UNDER ANY
FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE
SIMILAR TO SUCH PROVISIONS OR ERISA OR THE CODE ("SIMILAR LAWS"), OR OF
AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE "PLAN
ASSETS" OF SUCH PLANS, ACCOUNTS OR ARRANGEMENTS, OR (II) THE PURCHASE
AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
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OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
(B) Notwithstanding the foregoing, any Global Security or
Definitive Security issued pursuant to subparagraph (b)(iv), (c)(iii),
(c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of this Section
2.06 (and all Securities issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Security Legend. Each Global Security shall bear a legend
in substantially the following form:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY 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. THE DEPOSITORY TRUST COMPANY SHALL
ACT AS THE DEPOSITARY UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE
COMPANY AND THE REGISTRAR. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX
XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), 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.
(iii) Regulation S Temporary Global Security Legend. The Regulation S
Temporary Global Security shall bear a legend in substantially the
following form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF
INTEREST HEREON.
(iv) 144A Security Legend. Any Series A Security that is a 144A
Global Security or a Definitive Security sold to QIBs pursuant to Rule 144A
shall bear a legend in substantially the following form:
EACH PURCHASER OF THE SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
(h) Cancellation and/or Adjustment of Global Securities. At such time as
all beneficial interests in a particular Global Security have been exchanged for
Definitive Securities or a particular Global Security has been redeemed,
repurchased or canceled in whole and not in part, each such Global Security
shall be returned to or retained and canceled by the Trustee in accordance with
Section 2.11. At any time prior to such cancellation, if any beneficial interest
in a Global Security is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Security
or for Definitive Securities, the principal amount of Securities represented by
such Global Security shall be
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reduced accordingly and an endorsement shall be made on such Global Security by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Security, such other Global Security shall be increased
accordingly and an endorsement shall be made on such Global Security by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
(ii) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Securities and
Definitive Securities upon the Company's order or at the Registrar's
request.
(iii) No service charge shall be made to a holder of a beneficial
interest in a Global Security or to a Holder of a Definitive Security for
any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 8.05 and 10.06).
(iv) The Registrar shall not be required (A) to register the transfer
of or to exchange any Securities during a period beginning at the opening
of business 15 days before the day of the mailing of notice of redemption
under Section 10.03 and ending at the close of business on such day, or (B)
to register the transfer of or exchange any Security selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
(v) All Global Securities and Definitive Securities issued upon any
registration of transfer or exchange of Global Securities or Definitive
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Securities or Definitive Securities surrendered upon such
registration of transfer or exchange.
(vi) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of notice of
redemption under Section 10.03 and ending at the close of business on such
day, or (B) to register the transfer of or to exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
(vii) The Trustee shall authenticate Global Securities and Definitive
Securities in accordance with the provisions of Section 2.02.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
SECTION 2.07. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the
Securityholder (a) satisfies the Company or the Trustee within a reasonable time
after such Securityholder has notice of such loss, destruction or wrongful
taking and the Registrar does not register a transfer prior to receiving such
notification, (b) makes such request to the Company or Trustee prior to the
Security being acquired by a protected purchaser as defined in Section 8-303 of
the Uniform Commercial Code (a "protected purchaser") and (c) satisfies any
other reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder must furnish an indemnity bond that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee, any
Agent or any authenticating agent from any loss which any of them may suffer if
a Security is replaced. The Company and the Trustee may charge for their
expenses in replacing a Security. If, after the delivery of such replacement
Security, a bona fide purchaser of the original Security in lieu of which such
replacement Security was issued presents
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for payment or registration such original Security, the Trustee shall be
entitled to recover such replacement Security from the Person to whom it was
delivered or any Person taking therefrom, except a bona fide purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Trustee or the
Company in connection therewith. Every replacement Security is a contractual
obligation of the Company.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08. Outstanding Securities. The Securities outstanding at any
time are all the Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation, those reductions in the
interest in a Global Security effected by the Trustee hereunder and those
described in this Section 2.08 as not outstanding; provided, however, that in
determining whether the Holders of the requisite principal amount of outstanding
Securities are present at a meeting of Holders of Securities for quorum purposes
or have consented to or voted in favor of any request, demand, authorization,
direction, notice, consent, waiver, amendment or modification hereunder,
Securities held for the account of the Company or any of its Affiliates shall be
disregarded and deemed not to be outstanding, except that in determining whether
the Trustee shall be protected in making such a determination or relying upon
any such quorum, consent or vote, only Securities which a Responsible Officer of
the Trustee actually knows to be so owned shall be so disregarded.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under Section
3.01, it ceases to be outstanding and interest on it ceases to accrue.
SECTION 2.09. [Reserved.]
SECTION 2.10. Temporary Securities. Until Definitive Securities are ready
for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
Definitive Securities, but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Definitive Securities in
exchange for temporary Securities. Until so exchanged, temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
Definitive Securities.
SECTION 2.11. Cancellation. The Company or the Guarantor at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all
Securities surrendered for registration of transfer, exchange, payment,
replacement or cancellation. All canceled Securities held by the Trustee shall
be disposed of in accordance with the usual disposal procedures of the Trustee.
The Company may not issue new Securities to replace Securities that have been
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest. If the Company defaults in a payment of
interest on the Securities, it shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest on the defaulted interest, in each
case at the rate provided in the Securities and in the manner provided in
Section 3.01. The Company may pay the defaulted interest to the Persons who are
Holders on a subsequent special record date. At least 15 days before any special
record date, the Company (or the Trustee, in the name of and at the expense of
the Company) shall mail to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
SECTION 2.13. Persons Deemed Owners. The Company, the Guarantor, the
Trustee, any Agent and any authenticating agent may treat the Person in whose
name any Security is registered as the owner of
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such Security for the purpose of receiving payments of principal of or premium,
if any, Liquidated Damages, if any, Additional Amounts, if any, or interest on
such Security and for all other purposes. None of the Company, the Guarantor,
the Trustee, any Agent or any authenticating agent shall be affected by any
notice to the contrary.
SECTION 2.14. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
COVENANTS
SECTION 3.01. Payment of Securities. The Company shall pay the principal
of and premium, if any, Liquidated Damages, if any, Additional Amounts, if any,
and interest on the Securities on the dates and in the manner provided in the
Securities and in this Indenture. Principal, premium, if any, Liquidated
Damages, if any, Additional Amounts, if any, and interest shall be considered
paid on the date due if the Paying Agent, other than the Company or a Subsidiary
of the Company, holds by 11:00 a.m., Eastern time, on that date money deposited
by or on behalf of the Company designated for and sufficient to pay all
principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if
any, and interest then due.
To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if
any, and interest (without regard to any applicable grace period) at a rate
equal to the then applicable interest rate on the Securities.
Solely for purposes of disclosure pursuant to the Interest Act (Canada)
(and for no other purpose), the annual interest rate applicable to the
Securities, for any portion of any period of less than one year, will be the
percentage interest rate per annum stipulated in the Securities as to which the
calculation must be made, multiplied by the number of days in the calendar year
in which the applicable interest is paid, divided by 360.
SECTION 3.02. Maintenance of Office or Agency. The Company will maintain,
in the Borough of Manhattan, The City of
New York, an office or agency (which
may be an office of the Trustee, the Registrar or the Paying Agent) where
Securities may be presented for registration of transfer or exchange, where
Securities may be presented for payment and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of
New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. The Company hereby
designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.03.
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SECTION 3.03. SEC Reports; Financial Statements.
(a) The Guarantor covenants and agrees to file with the Trustee copies,
within 15 days after the Guarantor is required to file the same with the SEC, of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may from time to time
by rules and regulations prescribe) which the Guarantor may be required to file
with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Guarantor is not required to file information, documents or reports pursuant
to either of such sections, then to file with the Trustee and the SEC, in
accordance with rules and regulations prescribed from time to time by the SEC,
such of the supplementary and periodic information, documents and reports, if
any, which may be required pursuant to Section 13 of the Exchange Act, in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
(b) The Guarantor covenants and agrees to file with the Trustee and the
SEC, in accordance with the rules and regulations prescribed from time to time
by the SEC, such additional information, documents and reports, if any, with
respect to compliance by the Guarantor with the conditions and covenants
provided for in this Indenture as may be required from time to time by such
rules and regulations.
(c) [Reserved.]
(d) At any time when neither the Guarantor nor the Company is subject to
Section 13 or 15(d) of the Exchange Act and the Securities are not freely
transferrable under the Securities Act as contemplated by the Registration
Rights Agreement, upon the request of a Holder, the Guarantor and the Company
will promptly furnish or cause to be furnished the information specified under
Rule 144A(d)(4) of the Securities Act to such Holder, or to a prospective
purchaser of a Security designed by such Holder, in order to permit compliance
with Rule 144A under the Securities Act.
SECTION 3.04. Compliance Certificate. The Company and the Guarantor shall
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company, a statement signed by two Officers of the Company (one of whom shall be
the Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer
of the Company) and two Officers of the Guarantor (one of whom shall be the
Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer of
the Guarantor), which statement need not constitute an Officers' Certificate,
complying with TIA Section 314(a)(4) and stating that in the course of
performance by the signing Officers of the Company and Officers of the Guarantor
of their duties as such Officers, they would normally obtain knowledge of the
keeping, observing, performing and fulfilling by the Company and the Guarantor,
respectively, of their obligations under this Indenture, and further stating, as
to each such Officer signing such statement, that to the best of his knowledge,
each of the Company and the Guarantor has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which such Officer may have
knowledge and what action the Company or the Guarantor, as the case may be, are
taking or proposes to take with respect thereto).
SECTION 3.05. Corporate Existence. Subject to Article IV, each of the
Company and the Guarantor will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, under the
laws of its respective jurisdiction of incorporation or formation.
SECTION 3.06. Waiver of Stay, Extension or Usury Laws. Each of the
Company and the Guarantor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law, which would prohibit or forgive the Company or the
Guarantor from paying all or any portion of the principal of or premium, if any,
Liquidated Damages, if any, Additional Amounts, if any, or interest on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that they may lawfully do so) each of the Company
and the Guarantor hereby expressly waives all benefit or
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advantage of any such law, and covenants that it will not 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 had been
enacted.
SECTION 3.07. Limitation on Liens. So long as any Securities are
outstanding, the Guarantor will not, nor will it permit any Subsidiary to,
issue, assume, guarantee or suffer to exist any debt for money borrowed ("Debt")
if such Debt is secured by a mortgage, pledge, security interest or lien (a
"mortgage" or "mortgages") upon any properties of the Guarantor or any
Subsidiary or upon any securities or indebtedness of any Subsidiary (whether
such properties, securities or indebtedness is now owned or hereafter acquired)
without in any such case effectively providing that the Securities shall be
secured equally and ratably with (or prior to) such Debt, except that the
foregoing restrictions shall not apply to:
(a) mortgages on any property acquired, constructed or improved by the
Guarantor or any Subsidiary (or mortgages on the securities of a special
purpose Subsidiary which holds no material assets other than the property
being acquired, constructed or improved) after the date of this Indenture
which are created within 180 days after such acquisition (or in the case of
property constructed or improved, after the completion and commencement of
commercial operation of such property, whichever is later) to secure or
provide for the payment of the purchase price or cost thereof; provided
that in the case of such construction or improvement the mortgages shall
not apply to any property owned by the Guarantor or any Subsidiary before
such construction or improvement other than (1) unimproved real property on
which the property so constructed, or the improvement, is located or (2)
personal property which is so improved;
(b) mortgages existing on the Issue Date, existing mortgages on
property acquired (including mortgages on any property acquired from a
Person which is consolidated with or merged with or into the Guarantor or a
Subsidiary) or mortgages outstanding at the time any corporation,
partnership or other entity becomes a Subsidiary; provided that such
mortgages shall only apply to property owned by such corporation,
partnership or other entity at the time it becomes a Subsidiary or that is
acquired thereafter other than from the Guarantor or another Subsidiary;
(c) mortgages in favor of the Guarantor or any Subsidiary;
(d) mortgages in favor of domestic or foreign governmental bodies to
secure advances or other payments pursuant to any contract or statute or to
secure indebtedness incurred to finance the purchase price or cost of
constructing or improving the property subject to such mortgages, including
mortgages to secure Debt of the pollution control or industrial revenue
bond type;
(e) mortgages consisting of pledges or deposits by the Guarantor or
any Subsidiary under workers' compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Debt) or leases to
which the Guarantor or any Subsidiary is a party, or deposits to secure
public or statutory obligations of the Guarantor or any Subsidiary or
deposits of cash or United States government bonds to secure surety or
appeal bonds to which it is a party, or deposits as security for contested
taxes or import or customs duties or for the payment of rent, in each case
incurred in the ordinary course of business;
(f) mortgages imposed by law, including carriers', warehousemen's,
repairman's, landlords' and mechanics' liens, in each case for sums not yet
due or being contested in good faith by appropriate proceedings if a
reserve or other appropriate provisions, if any, as shall be required by
GAAP shall have been made in respect thereof;
(g) mortgages for taxes, assessments or other governmental charges
that are not yet delinquent or which are being contested in good faith by
appropriate proceedings provided appropriate reserves required pursuant to
GAAP have been made in respect thereof;
(h) mortgages in favor of issuers of surety or performance bonds or
letters of credit or bankers' acceptances issued pursuant to the request of
and for the account of the Guarantor or any Subsidiary in the ordinary
course of its business;
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(i) mortgages consisting of encumbrances, easements or reservations
of, or rights of others for, licenses, rights of way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or
mortgages consisting of zoning or other restrictions as to the use of real
properties or mortgages incidental to the conduct of the business of the
Guarantor or a Subsidiary or to the ownership of its properties which do
not materially adversely affect the value of said properties or materially
impair their use in the operation of the business of the Guarantor or a
Subsidiary;
(j) mortgages arising by virtue of any statutory or common law
provisions relating to bankers' liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a
depositary institution; provided that:
(1) such deposit account is not a dedicated cash collateral account
and is not subject to restrictions against access by us in excess of
those set forth by regulations promulgated by the Federal Reserve Board;
and
(2) such deposit account is not intended by the Guarantor or any
Subsidiary to provide collateral to the depository institution;
(k) mortgages arising from Uniform Commercial Code financing statement
filings regarding operating leases the Guarantor and its Subsidiaries enter
into in the ordinary course of business;
(l) any mortgage over goods (or any documents relating thereto)
arising either in favor of a bank issuing a form of documentary credit in
connection with the purchase of such goods or by way of retention of title
by the supplier of such goods where such goods are supplied on credit,
subject to such retention of title, and in both cases where such goods are
acquired in the ordinary course of business;
(m) any mortgage pursuant to any order of attachment, execution,
enforcement, distraint or similar legal process arising in connection with
court proceedings; provided that such process is effectively stayed,
discharged or otherwise set aside within 30 days;
(n) any lease, sublease and sublicense granted to any third party
constituting a mortgage and any mortgage pursuant to farm-in and farm-out
agreements, operating agreements, development agreements and any other
similar arrangements, which are customary in the oil and gas industry or in
the ordinary course of business of the Guarantor or any Subsidiary; or
(o) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any mortgage referred to
in the foregoing clauses (a) through (n), inclusive; provided that the
principal amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement shall be
limited to all or a part of the property which secured the mortgage so
extended, renewed or replaced (plus improvements in such property).
In addition to the foregoing, the Guarantor and any Subsidiary may, without
securing the Securities, issue, assume or guarantee secured Debt that, with
certain other Debt described in the following sentence, does not exceed 15% of
Consolidated Net Worth, as shown on a consolidated balance sheet of the
Guarantor as of a date not more than 90 days prior to the proposed transaction,
prepared by the Guarantor in accordance with GAAP. The other Debt to be
aggregated for purposes of this exception is all Attributable Debt in respect of
Sale and Lease-Back Transactions of the Guarantor and its Subsidiaries under the
exception in clause (e)(2) of Section 3.09 existing at such time.
SECTION 3.08. Payment of Additional Amounts. Unless otherwise required by
Bermudan law, neither the Company nor the Guarantor will deduct or withhold from
payments made with respect to the Securities and the Guarantees on account of
any present or future Taxes. In the event that either the Company or the
Guarantor is required to withhold or deduct on account of any Taxes due from any
payment made under or with respect to the Securities or the Guarantees, as the
case may be, the Company or the Guarantor, as the case may be, will pay such
additional amounts ("Additional Amounts") as may be necessary so that the net
amount received by each Holder of Securities will equal
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the amount that the Holder would have received if the Taxes had not been
required to be withheld or deducted; provided that no Additional Amounts will be
payable with respect to a payment made to a Holder (an "Excluded Holder") to the
extent: (i) that any Taxes would not have been so imposed but for the existence
of any present or former connection between the Holder and Bermuda, other than
the mere receipt of the payment, acquisition, ownership or disposition of such
Securities or the exercise or enforcement of rights under the Securities, the
Guarantees or this Indenture; (ii) of any estate, inheritance, gift, sales,
transfer or personal property Taxes imposed with respect to the Securities,
except as described below or as otherwise provided in this Indenture; (iii) that
any such Taxes would not have been imposed but for the presentation of the
Securities, where presentation is required, for payment on a date more than 30
days after the date on which the payment became due and payable or the date on
which payment thereof is duly provided for, whichever is later, except to the
extent that the beneficiary or Holder thereof would have been entitled to
Additional Amounts had the Securities been presented for payment on any date
during such 30-day period; or (iv) that the Holder would not be liable or
subject to such withholding or deduction of Taxes but for the failure to make a
valid declaration of non-residence or other similar claim for exemption, if: (a)
the making of the declaration or claim is required or imposed by statute,
treaty, regulation, ruling or administrative practice of the relevant taxing
authority as a precondition to an exemption from, or reduction in, the relevant
Taxes; and (b) at least 60 days prior to the first payment with respect to which
the Company or the Guarantor shall apply this clause (iv), the Company or the
Guarantor shall have notified all Holders of the Securities in writing that they
shall be required to provide this declaration or claim. The Company and the
Guarantor shall also (i) withhold or deduct such Taxes as required; (ii) remit
the full amount of Taxes deducted or withheld to the relevant taxing authority
in accordance with all applicable laws; (iii) use reasonable efforts to obtain
from each relevant taxing authority imposing the Taxes certified copies of tax
receipts evidencing the payment of any Taxes deducted or withheld; and (iv) upon
request, make available to the Holders of the Securities, within 60 days after
the date the payment of any Taxes deducted or withheld is due pursuant to
applicable law, certified copies of tax receipts evidencing such payment by the
Company or the Guarantor and, notwithstanding the Company's or the Guarantor's
efforts to obtain the receipts, if the same are not obtainable, other evidence
of such payments.
In addition, the Company or the Guarantor will pay any stamp, issue,
registration, documentary or other similar taxes and duties, including interest,
penalties and additional amounts with respect thereto, payable in Bermuda or the
United States, or any political subdivision or taxing authority of or in the
foregoing with respect to the creation, issue, offering, enforcement, redemption
or retirement of the Securities or Guarantees.
At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Company or the Guarantor
becomes obligated to pay Additional Amounts with respect to such payment, the
Company (or in respect of the Guarantees, the Guarantor) shall deliver to the
Trustee an Officers' Certificate stating the fact that such Additional Amounts
will be payable, and the amounts so payable and will set forth such other
information as is necessary to enable the Trustee to pay such Additional Amounts
to the Holders on the payment date. Whenever in this Indenture there is
mentioned, in any context, the payment of principal of and premium, if any,
Liquidated Damages, if any, Additional Amounts, if any, or interest (including
defaulted interest) or any other amount payable on or with respect to any of the
Securities, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for in this Section 3.08 to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section 3.08 and express mention of the
payment of Additional Amounts in those provisions hereof shall not be construed
as excluding Additional Amounts in those provisions hereof where such express
mention is not made (if applicable).
If payments with respect of the Securities or the Guarantees become subject
generally to the taxing jurisdiction of any Territory or any political
subdivision or taxing authority thereof or therein having power to tax, other
than or in addition to Bermuda or any political subdivision or taxing authority
therein or thereof having power to tax, immediately upon becoming aware thereof
the Company shall notify the
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Trustee of such event, and thereupon the Company or the Guarantor, as the case
may be, shall be obligated to pay Additional Amounts in respect thereof on terms
corresponding to the terms of the foregoing provisions of this Section 3.08 with
the substitution for (or, as the case may be, in addition to) the references
herein to Bermuda or any political subdivision or authority therein or thereof
having power to tax of references to that other or additional Territory or any
political subdivision or authority therein or thereof having power to tax to
whose taxing jurisdiction such payments shall have become subject as aforesaid.
The term "Territory" means for this purpose any jurisdiction in which the
Company or the Guarantor, as the case may be, is incorporated or in which the we
or it has its place of central management or central control.
The obligations of the Company and the Guarantor under this Section 3.08
shall survive the termination of this Indenture and the payment of all amounts
under or with respect to this Indenture and the Securities.
Section 3.09. Limitations on Sale and Lease-Back Transactions. So long as
any Securities are outstanding, the Guarantor will not, nor will it permit any
Subsidiary to, enter into any Sale and Lease-Back Transaction, other than any
Sale and Lease-Back Transaction:
(a) entered into within 180 days of the later of the acquisition or
placing into service of the property subject thereto by the Guarantor or
such Subsidiary;
(b) involving a lease of less than five years;
(c) entered into in connection with an industrial revenue bond or
pollution control financing;
(d) between the Guarantor and/or one or more Subsidiaries;
(e) as to which the Guarantor or such Subsidiary would be entitled to
incur Debt secured by a mortgage on the property to be leased in an amount
equal to the Attributable Debt with respect to such Sale and Lease-Back
Transaction without equally and ratably securing the Securities (1) under
clauses (a) through (o) of Section 3.07 or (2) under the last paragraph of
Section 3.07; or
(f) as to which the Guarantor will apply an amount equal to the net
proceeds from the sale of the property so leased to (1) the retirement
(other than any mandatory retirement), within 180 days of the effective
date of any such Sale and Lease-Back Transaction, of Securities or of
Funded Debt of the Guarantor or a Subsidiary or (2) the purchase or
construction of other property, provided that such property is owned by the
Guarantor or a Subsidiary free and clear of all mortgages.
ARTICLE IV
CONSOLIDATION, MERGER AND SALE
SECTION 4.01. Limitation on Mergers and Consolidations. The Company shall
not consolidate or merge into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person unless:
(1) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an
entirety shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia,
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and interest on all the Securities
and the performance of every covenant of this Indenture on the part of the
Company to be performed;
(2) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such
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supplemental indenture comply with this Article IV and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
The Guarantor shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person unless:
(1)(A) the Person formed by such consolidation or into which the
Guarantor is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Guarantor substantially
as an entirety shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of all obligations in respect of the
Guarantees and the performance of every covenant of this Indenture on the
part of the Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
(3) the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article IV and that all conditions precedent
herein provided for relating to such transaction have been complied with.
SECTION 4.02. Successors Substituted. Upon any consolidation of the
Company or the Guarantor with, or merger of the Company or the Guarantor into,
any other Person, or any conveyance, transfer or lease of the properties and
assets of the Company or the Guarantor substantially as an entirety in
accordance with Section 4.01, the successor Person formed by such consolidation
or into which the Company or the Guarantor is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company or the Guarantor, as the
case may be, under this Indenture with the same effect as if such successor
Person had been named as the Company or the Guarantor, as the case may be,
herein, and thereafter, except in the case of a lease to another Person, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default. "Event of Default" means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of the principal of or premium, if any, on
any Security at its Maturity, and continuance of such default for a period
of 10 days; or
(2) default in the payment of interest, Liquidated Damages, if any, or
Additional Amounts, if any, upon any Security when it becomes due and
payable, and continuance of such default for a period of 30 days; or
(3) default in the observance or performance, or breach, of any
covenant of the Company or the Guarantor in any Security or this Indenture
(other than a covenant a default in whose performance or whose breach is
elsewhere in this Section 5.01 specifically dealt with), and continuance of
such default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company and the Guarantor by the
Trustee or to the Company, the Guarantor and the Trustee by the Holders of
at least 25% in aggregate principal amount of the outstanding Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
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(4) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or the Guarantor in an
involuntary case or proceeding under any applicable Bankruptcy Law or (B) a
decree or order adjudging the Company or the Guarantor a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or the Guarantor under any applicable Bankruptcy Law, or
appointing a custodian, receiver, receiver and manager, interim receiver,
administrator, monitor, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or the Guarantor or of any
substantial part of the property of the Company or the Guarantor, or
ordering the winding up or liquidation of the affairs of the Company or the
Guarantor, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 90
consecutive days;
(5) the commencement by the Company or the Guarantor of a voluntary
case or proceeding under any applicable Bankruptcy Law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by
either of them to the entry of a decree or order for relief in respect of
the Company or the Guarantor in an involuntary case or proceeding under any
applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against any of them, or the filing by any of
them of a petition or answer or consent seeking reorganization or relief
under any applicable Bankruptcy Law, or the consent by any of them to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, receiver and manager, interim receiver, administrator,
monitor, liquidator, assignee, trustee, sequestrator or similar official of
the Company or the Guarantor or of any substantial part of the property of
the Company or the Guarantor, or the making by either of them of an
assignment for the benefit of creditors, or the admission by either of them
in writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company or the Guarantor in
furtherance of any such action; or
(6) the Guarantees cease to be in full force and effect or become
unenforceable or invalid or are declared null and void (other than in
accordance with the terms of such Guarantees) or the Guarantor denies or
disaffirms its obligations under such Guarantees.
The Trustee shall not be deemed to know of a Default or Event of Default
unless a Responsible Officer at the Corporate Trust Office of the Trustee has
actual knowledge of such Default or Event of Default or the Trustee receives
written notice at the Corporate Trust Office of the Trustee of such Default or
Event of Default with specific reference to such Default.
When a Default is cured, or when an Event of Default is deemed cured
pursuant to Section 5.04, such Default, or Event of Default, as the case may be,
ceases.
SECTION 5.02. Acceleration. If an Event of Default (other than an Event
of Default specified in clause (4) or (5) of Section 5.01) occurs and is
continuing, the Trustee by notice to the Company and the Guarantor, or by the
Holders of at least 25% in aggregate principal amount of the then outstanding
Securities by written notice to the Company, the Guarantor and the Trustee, may
declare the principal of and Liquidated Damages, if any, Additional Amounts, if
any, and interest on all then outstanding Securities to be due and payable
immediately. Upon any such declaration the amounts due and payable on the
Securities, as determined in accordance with the next succeeding paragraph,
shall be due and payable immediately. If an Event of Default specified in clause
(4) or (5) of Section 5.01 occurs, the principal of Liquidated Damages, if any,
Additional Amounts, if any, and interest on all Securities then outstanding
shall ipso facto become and be immediately due and payable without any
declaration, notice or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment for payment of the money due has been obtained by the Trustee
as hereinafter in this Article V provided, the
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Holders of a majority in aggregate principal amount of the outstanding
Securities, by written notice to the Company, the Guarantor and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay:
(A) the principal of and premium, if any, on any Securities which
have become due otherwise than by such declaration of acceleration and
Liquidated Damages, if any, and Additional Amounts, if any, and any
interest thereon at the rate or rates prescribed therefor in such
Securities or in this Indenture,
(B) all overdue interest, Liquidated Damages, if any, and
Additional Amounts, if any, on all Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest and overdue Liquidated Damages, if any, and
overdue Additional Amounts, if any, at the rate or rates prescribed
therefor in such Securities or in this Indenture, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.04.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
If the maturity of the Securities is accelerated pursuant to this Section
5.02, 100% of the principal amount thereof shall become due and payable plus
Liquidated Damages, if any, Additional Amounts, if any, and interest to the date
of payment.
SECTION 5.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of and Liquidated Damages, if any, Additional Amounts, if any, and
interest on the Securities or to enforce the performance of any provision of the
Securities, the Guarantees, or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
SECTION 5.04. Waiver of Existing Defaults. Subject to Sections 5.07 and
8.02, the Holders of a majority in aggregate principal amount of the Securities
then outstanding by notice to the Trustee may waive an existing Default or Event
of Default and its consequences (including waivers obtained in connection with a
tender offer or exchange offer for the Securities or a solicitation of consents
in respect of the Securities, provided that in each case such offer or
solicitation is made to all Holders of the Securities then outstanding on equal
terms), except (1) a continuing Default or Event of Default in the payment of
the principal of or premium, if any, Liquidated Damages, if any, Additional
Amounts, if any, or interest on the Securities or (2) a continuing Default in
respect of a provision that under Section 8.02 cannot be amended without the
consent of each Holder affected. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereon.
SECTION 5.05. Control by Majority. The Holders of a majority in aggregate
principal amount of the Securities then outstanding may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on it hereunder. The Trustee,
however, may refuse to follow any direction that conflicts with applicable law
or this Indenture
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that the Trustee determines may be unduly prejudicial to the rights of other
Holders, or that may involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to receive reasonable indemnification
satisfactory to it against all losses and expenses caused by taking or not
taking such action subject to the Trustee's duty to act with the required
standard of care during a default.
SECTION 5.06. Limitations on Suits. Subject to Section 5.07, a Holder may
pursue a remedy with respect to this Indenture (including the Guarantees) or the
Securities only if:
(1) such Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders furnish to the Trustee reasonable indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the furnishing of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the Securities do not give the Trustee a direction inconsistent
with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 5.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of principal of and premium, if any, Liquidated Damages, if any,
Additional Amounts, if any, and interest on the Security, on or after the
respective due dates expressed in the Security, or to bring suit against the
Company and/or the Guarantor for the enforcement of any such payment on or after
such respective dates, is absolute and unconditional and shall not be impaired
or affected without the consent of such Holder.
SECTION 5.08. Collection Suit by Trustee. If an Event of Default
specified in clause (1) or (2) of Section 5.01 occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Company and the Guarantor (i) for the amount of
principal of and premium, if any, Liquidated Damages, if any, Additional
Amounts, if any, and interest remaining unpaid on any Securities and (ii)
interest on overdue principal, premium, if any, Liquidated Damages, if any,
Additional Amounts, if any, and, to the extent lawful, interest on overdue
interest, and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 5.09. Trustee May File Proofs of Claim. The Trustee is authorized
to file such proofs of claim and other papers or documents and to take such
actions, including participating as a member, voting or otherwise, of any
committee of creditors, as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company and the
Guarantor or their respective creditors or properties and shall be entitled and
empowered to collect, receive and distribute any money or other property payable
or deliverable on any such claims and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07 out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a lien on, and shall be paid out of, any and all distributions,
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dividends, money, securities and other properties which the Holders of the
Securities may be entitled to receive in such proceeding whether in liquidation
or under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 5.10. Priorities. If the Trustee collects any money pursuant to
this Article V, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 6.07;
Second: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, Liquidated Damages, if any, Additional Amounts,
if any, and interest ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal,
premium, if any, Liquidated Damages, if any, Additional Amounts, if any,
and interest, respectively; and
Third: to the Company and the Guarantor.
The Trustee, upon prior written notice to the Company and the Guarantor,
may fix a record date and payment date for any payment to Holders pursuant to
this Article V.
SECTION 5.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as a trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 5.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 5.07, or a suit by a Holder or
Holders of more than 10% in principal amount of the Securities then outstanding.
ARTICLE VI
TRUSTEE
SECTION 6.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in such exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine such certificates and opinions to determine
whether or not, on their face, they appear to conform to the requirements
of this Indenture.
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(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 6.01;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.05.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section 6.01.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse to perform any
duty or exercise any right or power unless it receives indemnity satisfactory to
it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law. All money received by the Trustee shall, until applied
as herein provided, be held in trust for the payment of the principal of and
premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and
interest on the Securities.
SECTION 6.02. Rights of Trustee.
(a) The Trustee may rely conclusively on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate and/or Opinion of Counsel. The Trustee may consult
with counsel and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company or the Guarantor shall be
sufficient if signed by an Officer of the Company or the Guarantor, as the case
may be.
(f) The Trustee is not required to give any bond or surety with respect to
the performance of its duties or the exercise of its powers under this
Indenture.
(g) In the event the Trustee receives inconsistent or conflicting requests
and indemnity from two or more groups of Holders of Securities, each
representing less than a majority in aggregate principal amount of the
outstanding Securities, pursuant to the provisions of this Indenture, the
Trustee may determine what action, if any, shall be taken.
(h) The Trustee's immunities and protections from liability and its right
to indemnification in connection with the performance of its duties under this
Indenture shall extend and be enforceable by the Trustee in each of its
capacities hereunder and shall extend to the Trustee's officers, directors,
agents, attorneys and employees. Such immunities and protections and right to
indemnity, together with the
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Trustee's right to compensation, shall survive the Trustee's resignation or
removal, the discharge of this Indenture and final payment of the Securities.
(i) The permissive right of the Trustee to take the actions permitted by
this Indenture shall not be construed as an obligation or duty to do so.
(j) Except for information provided by the Trustee concerning the Trustee,
the Trustee shall have no responsibility for any information in the Offering
Memorandum or other disclosure material distributed with respect to the
Securities, and the Trustee shall have no responsibility for compliance with any
U.S. or Canadian Federal or State or provincial securities or employee benefit
plan laws in connection with the Securities.
(k) The Trustee may request that the Company or the Guarantor, as the case
may be, deliver an Officers' Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed by any
person authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered and not
superseded.
SECTION 6.03. Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company, the Guarantor or any of their Affiliates with
the same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Sections 6.10 and
6.11.
SECTION 6.04. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture, the Securities or the
Guarantees, it shall not be accountable for the Company's use of the proceeds
from the Securities or any money paid to the Company or upon the Company's
direction under any provision hereof, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee and
it shall not be responsible for any statement or recital herein or any statement
in the Securities other than its certificate of authentication.
SECTION 6.05. Notice of Defaults. If a Default or Event of Default occurs
and is continuing and it is actually known to a Responsible Officer of the
Trustee, the Trustee shall mail to Holders a notice of the Default or Event of
Default within 90 days after it occurs. Except in the case of a Default or Event
of Default in payment of principal of or premium, if any, Liquidated Damages, if
any, Additional Amounts, if any, or interest on any Security, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Holders.
SECTION 6.06. Reports by Trustee to Holders. Within 60 days after May 15
of each year, beginning with May 15, 2003, the Trustee shall mail to Holders a
brief report dated as of May 15 of such year that complies with TIA Section
313(a); provided, however, that if no event described in TIA Section 313(a) has
occurred within the 12 months preceding the reporting date, no report need be
transmitted. The Trustee also shall comply with TIA Section 313(b). The Trustee
shall also transmit by mail all reports as required by TIA Sections 313(c) and
313(d).
A copy of each report at the time of its mailing to Holders shall be filed
with the SEC and each securities exchange, if any, on which the Securities are
listed. The Company shall notify the Trustee if and when the Securities are
listed on any securities exchange.
SECTION 6.07. Compensation and Indemnity. The Company and the Guarantor
jointly and severally agree to pay to the Trustee from time to time such
compensation as agreed to by the Company, the Guarantor and the Trustee, for its
acceptance of this Indenture and its services hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company and the Guarantor jointly and severally agree to
reimburse the Trustee upon request for all reasonable disbursements, advances
and expenses incurred by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company and the Guarantor jointly and severally agree to indemnify the
Trustee or any predecessor Trustee and their agents for and to hold them
harmless against any and all loss, liability,
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damage, claim, or expense (including taxes, other than taxes based upon,
measured by or determined by the income of the Trustee) incurred by it arising
out of or in connection with the acceptance or administration of its duties
under this Indenture, including the costs and expenses of defending itself
against any claim (whether asserted by the Company, the Guarantor, any Holder or
any other Person), except as set forth in the next paragraph. The Trustee shall
notify the Company and the Guarantor promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel, and the Company and the
Guarantor shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent.
Neither the Company nor the Guarantor shall be obligated to reimburse any
expense or indemnify against any loss or liability incurred by the Trustee
through negligence or bad faith.
To secure the payment obligations of the Company and the Guarantor in this
Section 6.07, the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, except that held in trust to pay
principal of and premium, if any, Liquidated Damages, if any, and Additional
Amounts, if any, and interest on the Securities. Such lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.01(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 6.08. Replacement of Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
6.08.
The Trustee may resign and be discharged from the trust hereby created by
so notifying the Company and the Guarantor. The Holders of a majority in
principal amount of the then outstanding Securities may remove the Trustee by so
notifying the Trustee and the Company. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company and the Guarantor shall promptly appoint
a successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities then outstanding
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the Securities then outstanding
may petition any court of competent jurisdiction at the expense of the Company
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company and the Guarantor. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the
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lien provided for in Section 6.07. Notwithstanding replacement of the Trustee
pursuant to this Section 6.08, the obligations of the Company and the Guarantor
under Section 6.07 shall continue for the benefit of the retiring Trustee.
SECTION 6.09. Successor Trustee by Merger, etc. Subject to Section 6.10,
if the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee;
provided, however, that in the case of a transfer of all or substantially all of
its corporate trust business to another corporation, the transferee corporation
expressly assumes all of the Trustee's liabilities hereunder.
In case any Securities shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 6.10. Eligibility; Disqualification. There shall at all times be
a Trustee hereunder which shall be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia and authorized under such laws to exercise corporate trust
power, shall be subject to supervision or examination by Federal or State (or
the District of Columbia) authority and shall have, or be a Subsidiary of a bank
or bank holding company having, a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee that satisfies the requirements
of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is subject to
and shall comply with the provisions of TIA Section 310(b) during the period of
time required by this Indenture. Nothing in this Indenture shall prevent the
Trustee from filing with the SEC the application referred to in the penultimate
paragraph of TIA Section 310(b).
SECTION 6.11. Preferential Collection of Claims Against Company. The
Trustee is subject to and shall comply with the provisions of TIA Section
311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated therein.
ARTICLE VII
DISCHARGE OF INDENTURE
SECTION 7.01. Termination of Company's and Guarantor's Obligations.
(a) This Indenture shall cease to be of further effect (except that the
Company's and the Guarantor's obligations under Section 6.07 and the Trustee's
and Paying Agent's obligations under Section 7.03 shall survive), and the
Trustee, on demand of the Company, shall execute proper instruments
acknowledging the satisfaction and discharge of this Indenture, when:
(1) either
(A) all outstanding Securities theretofore authenticated and issued
(other than destroyed, lost or stolen Securities that have been replaced
or paid) have been delivered to the Trustee for cancellation; or
(B) all outstanding Securities not theretofore delivered to the
Trustee for cancellation:
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity within
one year, or
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(iii) will be scheduled for redemption by their terms within one
year, and the Company, in the case of clause (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as
funds (immediately available to the Holders in the case of clause
(i)) in trust for such purpose an amount of cash or, in the case of
clause (ii) or (iii), U.S. Government Obligations or a combination
thereof which, together with earnings thereon, will be sufficient, in
the case of clause (ii) or (iii), in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge the entire indebtedness on such Securities for principal,
premium, if any, Liquidated Damages, if any, Additional Amounts, if
any, and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity, as the case may be;
(2) the Company has paid all other sums payable by it hereunder; and
(3) the Company has delivered to the Trustee an Officers' Certificate
stating that all conditions precedent to satisfaction and discharge of this
Indenture have been complied with, together with an Opinion of Counsel to
the same effect.
(b) The Company and the Guarantor may, subject as provided herein,
terminate all of their obligations under this Indenture if:
(1) the Company has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments dedicated solely to the benefit of the
Holders (i) cash in an amount, or (ii) U.S. Government Obligations or (iii)
a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay, without
consideration of the reinvestment of any such amounts and after payment of
all taxes or other charges or assessments in respect thereof payable by the
Trustee, the principal of and premium, if any, Liquidated Damages, if any,
Additional Amounts, if any and interest on all Securities on each date that
such principal, premium, if any, Liquidated Damages, if any, Additional
Amounts, if any, or interest is due and payable and to pay all other sums
payable by it hereunder; provided that the Trustee shall have been
irrevocably instructed to apply such money and/or the proceeds of such U.S.
Government Obligations to the payment of said principal, premium, if any,
Liquidated Damages, if any, Additional Amounts, if any, and interest with
respect to the Securities as the same shall become due;
(2) the Company has delivered to the Trustee an Officers' Certificate
stating that all conditions precedent to satisfaction and discharge of this
Indenture have been complied with, and an Opinion of Counsel to the same
effect;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as clauses (4) and (5)
of Section 5.01 are concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period);
(4) the Company shall have delivered to the Trustee an Opinion of
Counsel from nationally recognized counsel acceptable to the Trustee to the
effect that, based on a ruling of the Internal Revenue Service or a change
in U.S. Federal income tax law occurring after the date of this Indenture,
the Holders of Securities will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of the Company's exercise of its
option under this Section 7.01(b) and will be subject to U.S. Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such option had not been exercised;
(5) such deposit and discharge will not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company or the Guarantor is a party or by which it
is bound;
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(6) such deposit and discharge shall not cause the Trustee to have a
conflicting interest as defined in TIA Section 310(b); and
(7) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the passage of 91 days following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
In such event, payment of the Securities may not be accelerated because of
an Event of Default, Article IX and the other provisions of this Indenture shall
cease to be of further effect (except as provided in the next succeeding
paragraph), and the Trustee, on demand of the Company, shall execute proper
instruments acknowledging satisfaction and discharge under this Indenture.
However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 3.01, 3.02, 3.08, 6.08 and 7.01 the Company's and the Guarantor's
obligations in Sections 4.01, 6.07, 7.04 and 9.01 and the Trustee's and Paying
Agent's obligations in Section 7.03 shall survive until the Securities are no
longer outstanding. Thereafter, only the Company's and the Guarantor's
obligations in Section 6.07 and the Trustee's and Paying Agent's obligations in
Section 7.03 shall survive.
After such irrevocable deposit made pursuant to this Section 7.01(b) and
satisfaction of the other conditions set forth herein, the Trustee, on demand of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge under this Indenture.
(c) The Company and the Guarantor may, subject as provided herein, be
released from their respective obligations to comply with, and shall have no
liability in respect of any term, condition or limitation, set forth in Sections
3.07, 3.09 and 4.01 and in Article IX, and such omission to comply with Sections
3.07, 3.09 and 4.01 and Article IX shall not constitute an Event of Default
under Section 5.01 ("Covenant Defeasance"), with the remainder of this Indenture
and such Securities unaffected thereby if:
(1) the Company has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments dedicated solely to the benefit of the
Holders (i) cash in an amount, or (ii) U.S. Government Obligations or (iii)
a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay, without
consideration of the reinvestment of any such amounts and after payment of
all taxes or other charges or assessments in respect thereof payable by the
Trustee, the principal of and premium, if any, Liquidated Damages, if any,
Additional Amounts, if any and interest on all Securities on each date that
such principal, premium, if any, Liquidated Damages, if any, Additional
Amounts, if any, or interest is due and payable and to pay all other sums
payable by it hereunder; provided that the Trustee shall have been
irrevocably instructed to apply such money and/or the proceeds of such U.S.
Government Obligations to the payment of said principal, premium, if any,
Liquidated Damages, if any, Additional Amounts, if any, and interest with
respect to the Securities as the same shall become due;
(2) the Company has delivered to the Trustee an Officers' Certificate
stating that all conditions precedent to the Covenant Defeasance
contemplated by this provision have been complied with, and an Opinion of
Counsel to the same effect;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as clauses (4) and (5)
of Section 5.01 are concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period);
(4) the Company shall have delivered to the Trustee an Opinion of
Counsel from nationally recognized counsel acceptable to the Trustee to the
effect that the Holders of Securities will not recognize income, gain or
loss for U.S. Federal income tax purposes as a result of the Company's
exercise of its option under this Section 7.01(c) and will be subject to
U.S. Federal income tax on
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the same amounts, in the same manner and at the same times as would have
been the case if such option had not been exercised;
(5) such Covenant Defeasance will not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to
which the Company or the Guarantor is a party or by which it is bound;
(6) such Covenant Defeasance shall not cause the Trustee to have a
conflicting interest as defined in TIA Section 310(b); and
(7) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the passage of 91 days following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
(d) In order to have money available on a payment date to pay principal of
or premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or
interest on the Securities, the U.S. Government Obligations shall be payable as
to principal or interest on or before such payment date in such amounts as will
provide the necessary money. U.S. Government Obligations shall not be callable
at the issuer's option.
(e) The Company may exercise its option under Section 7.01(b)
notwithstanding its prior exercise of its Covenant Defeasance option under
Section 7.01(c).
SECTION 7.02. Application of Trust Money. The Trustee or a trustee
satisfactory to the Trustee and the Company shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 7.01. It shall
apply the deposited money and the money from U.S. Government Obligations through
the Paying Agent and in accordance with this Indenture to the payment of
principal of and premium, if any, Liquidated Damages, if any, Additional
Amounts, if any, and interest on Securities of the series with respect to which
the deposit was made.
SECTION 7.03. Repayment to Company. The Trustee and the Paying Agent
shall promptly pay to the Company upon written request any excess money or
securities held by them at any time. Subject to the requirements of any
applicable abandoned property laws, the Trustee and the Paying Agent shall pay
to the Company upon written request any money held by them for the payment of
principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if
any, or interest that remains unclaimed for two years after the date upon which
such payment shall have become due; provided, however, that the Company shall
have either caused notice of such payment to be mailed to each Holder entitled
thereto no less than 30 days prior to such repayment or within such period shall
have published such notice in a financial newspaper of widespread circulation
published in The City of
New York. After payment to the Company, Holders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person, and all
liability of the Trustee and the Paying Agent with respect to such money shall
cease.
SECTION 7.04. Reinstatement. If the Trustee or the Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with Section
7.01 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the obligations of the Company and the Guarantor
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 7.01 until such time as the
Trustee or the Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 7.01; provided, however, that
if the Company or the Guarantor has made any payment of principal of or interest
on any Securities because of the reinstatement of its obligations, the Company
or the Guarantor, as the case may be, shall be subrogated to the rights of the
Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or the Paying Agent.
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ARTICLE VIII
AMENDMENTS
SECTION 8.01. Without Consent of Holders. The Company, the Guarantor and
the Trustee may amend or supplement this Indenture or any of the Securities or
waive any provision hereof or thereof without the consent of any Holder:
(1) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities any property or assets;
(2) to evidence the succession of another Person to the Company or the
Guarantor, or successive successions, and the assumption by the successor
Person of the covenants, agreements and obligations of the Company or the
Guarantor pursuant to Section 4.01 or 4.02;
(3) to add to the covenants of the Company or the Guarantor such
further covenants, restrictions, conditions or provisions as the Company or
the Guarantor and the Trustee shall consider to be for the protection of
the Holders of Securities, to surrender any right or power herein conferred
upon the Company or the Guarantor, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions of an Event of Default permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth, provided that in respect of any such
additional covenant, restriction, condition or provision such amendment or
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the Holders of a
majority in aggregate principal amount of the Securities to waive such an
Event of Default;
(4) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, provided that no such action shall adversely affect
the interests of the Holders of the Securities;
(5) to provide for uncertificated Securities in addition to or in
place of certificated Securities, provided that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of
the Code, or in a manner such that uncertificated notes are described in
Section 163(f)(2)(B) of the Code;
(6) to comply with any requirements, including the requirement of the
SEC, in order to effect or maintain the qualification of this Indenture
under the TIA; and
(7) to provide for any additional guarantees of the Securities or to
make any other change that does not adversely affect the rights of any
Holder.
Upon the request of the Company and the Guarantor accompanied by a
resolution of the Board of Directors of each of the Company and the Guarantor
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in Section 8.06, the Trustee shall
join with the Company and the Guarantor in the execution of any supplemental
indenture authorized or permitted by the terms of this Indenture and make any
further appropriate agreements and stipulations that may be therein contained.
After an amendment, supplement or waiver under this Section 8.01 becomes
effective, the Company shall mail to the Holders of each Security affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
SECTION 8.02. With Consent of Holders. Except as provided below in this
Section 8.02, the Company, the Guarantor and the Trustee may amend or supplement
this Indenture with the written consent (including consents obtained in
connection with a tender offer or exchange offer for the Securities
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or a solicitation of consents in respect of the Securities, provided that in
each case such offer or solicitation is made to all Holders of the Securities
then outstanding on equal terms) of the Holders of at least a majority in
aggregate principal amount of the Securities then outstanding affected thereby.
Upon the request of the Company and the Guarantor accompanied by a
resolution of the Board of Directors of each of the Company and the Guarantor
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders as aforesaid,
and upon receipt by the Trustee of the documents described in Section 8.06, the
Trustee shall join with the Company and the Guarantor in the execution of such
supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
8.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
The Holders of a majority in aggregate principal amount of the Securities
then outstanding may waive compliance in a particular instance by the Company or
the Guarantor with any provision of this Indenture or the Securities (including
waivers obtained in connection with a tender offer or exchange offer for the
Securities or a solicitation of consents in respect of the Securities, provided
that in each case such offer or solicitation is made to all Holders of the
Securities then outstanding on equal terms).
Without the consent of each Holder affected, an amendment, supplement or
waiver under this Section 8.02 may not:
(1) extend the final maturity of the principal of any of the
Securities;
(2) reduce the principal amount of any of the Securities;
(3) reduce the rate or extend the time of payment of interest,
including default interest, or Additional Amounts, if any, on any of the
Securities;
(4) reduce any amount payable on redemption of any of the Securities;
(5) change the currency in which the principal of or premium, if any,
Additional Amounts, if any, or interest on any of the Securities is
payable;
(6) impair the right to institute suit for the enforcement of any
payment of principal of or premium, if any, Additional Amounts, if any, or
interest on any Security pursuant to Sections 5.07 and 5.08, except as
limited by Section 5.06;
(7) make any change in the percentage of principal amount of the
Securities necessary to waive compliance with or to modify certain
provisions of this Indenture pursuant to Section 5.04 or 5.07 or this
clause of this Section 8.02; or
(8) waive a continuing Default or Event of Default in the payment of
principal of or premium, if any, Liquidated Damages, if any, Additional
Amounts, if any, or interest, including default interest, on the
Securities.
The right of any Holder to participate in any consent required or sought
pursuant to any provision of this Indenture (and the obligation of the Company
to obtain any such consent otherwise required from such Holder) may be subject
to the requirement that such Holder shall have been the Holder of record of the
Securities as of a date identified by the Trustee in a notice furnished to
Holders in accordance with the terms of this Indenture.
SECTION 8.03. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall comply in form and substance with the TIA
as then in effect.
SECTION 8.04. Revocation and Effect of Consents. A consent to an
amendment (which includes a supplement) or waiver by a Holder is a continuing
consent by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent is not made on any Security. However, any such Holder
or subsequent Holder
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may revoke the consent as to its Security or portion of a Security if the
Trustee receives written notice of revocation at any time prior to (but not
after) the date the Trustee receives an Officers' Certificate certifying that
the Holders of the requisite principal amount of Securities have consented (and
not theretofore revoked such consent) to the amendment, supplement or waiver. An
amendment, supplement or waiver becomes effective in accordance with its terms
and thereafter binds every Holder, and a consent thereto given in connection
with a tender of a Holder's Securities shall not be rendered invalid by such
tender.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver or to take any other action with respect to the Securities under this
Indenture. If a record date is fixed, then notwithstanding the provisions of the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No consent shall be valid or effective for more than 90
days after such record date unless consents from Holders of the principal amount
of the Securities required hereunder for such amendment or waiver to be
effective shall have also been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder, unless it is of the type described in any of clauses (1) through
(8) of Section 8.02. In such case, the amendment, supplement or waiver shall
bind each Holder who has consented to it and every subsequent Holder that
evidences the same debt as the consenting Holder's Security.
SECTION 8.05. Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 8.06. Trustee to Sign Amendments, etc. The Trustee shall sign any
amendment, waiver or supplemental indenture authorized pursuant to this Article
VIII if the amendment, waiver or supplemental indenture does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing or refusing to sign such
amendment, waiver or supplemental indenture, the Trustee shall receive, and
subject to Section 6.01, shall be fully protected in relying upon, an Opinion of
Counsel and an Officers' Certificate, as conclusive evidence that all conditions
precedent to such amendment, waiver or supplemental indenture have been complied
with, that such amendment, waiver or supplemental indenture is authorized or
permitted by this Indenture, that it is not inconsistent herewith, and that it
will be valid and binding upon the Company and the Guarantor in accordance with
its terms.
ARTICLE IX
GUARANTEES OF SECURITIES
SECTION 9.01. Unconditional Guarantees.
(a) For value received, the Guarantor hereby fully, irrevocably,
unconditionally and absolutely guarantees to the Holders and to the Trustee the
due and punctual payment of the principal of and premium, if any, Liquidated
Damages, if any, Additional Amounts, if any, and interest on the Securities and
all other amounts due and payable under this Indenture and the Securities by the
Company (including, without limitation, all costs and expenses (including
reasonable legal fees and disbursements) incurred by the Trustee or the Holders
in connection with the enforcement of this Indenture, the Securities and the
Guarantees) (collectively, the "Indenture Obligations"), when and as such
principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if
any, and interest and such other amounts shall become due and payable, whether
at the Stated Maturity, upon redemption or by
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declaration of acceleration or otherwise, according to the terms of the
Securities and this Indenture. The guarantees by the Guarantor set forth in this
Article IX are referred to herein as the "Guarantees." Without limiting the
generality of the foregoing, the Guarantor's liability shall extend to all
amounts that constitute part of the Indenture Obligations and would be owed by
the Company under this Indenture and the Securities but for the fact that they
are unenforceable, reduced, limited, impaired, suspended or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Company.
(b) Failing payment when due of any amount guaranteed pursuant to the
Guarantees, for whatever reason, the Guarantor will be obligated to pay the same
immediately to the Trustee, without set-off or counterclaim or other reduction
whatsoever (whether for taxes, withholding or otherwise). The Guarantees are
intended to be general, unsecured, senior obligations of the Guarantor and will
rank pari passu in right of payment with all indebtedness of the Guarantor that
is not, by its terms, expressly subordinated in right of payment to the
Guarantees of the Guarantor. The Guarantor hereby agrees that its obligations
hereunder shall be full, irrevocable, unconditional and absolute, irrespective
of the validity, regularity or enforceability of the obligations and liabilities
of any other obligor with respect to the Securities, the Guarantees or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder with respect to any provisions hereof or thereof with respect to
the same, the recovery of any judgment against the Company, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of the Guarantor.
The Guarantor hereby agrees that in the event of a default in payment of
the principal of or premium, if any, Liquidated Damages, if any, Additional
Amounts, if any, or interest on the Securities or any other amounts payable
under this Indenture and the Securities by the Company, whether at the Stated
Maturity, upon redemption or by declaration of acceleration or otherwise, legal
proceedings may be instituted by the Trustee on behalf of the Holders or,
subject to Section 5.06, by the Holders, on the terms and conditions set forth
in this Indenture, directly against the Guarantor to enforce the Guarantees
without first proceeding against the Company.
(c) To the fullest extent permitted by applicable law, the obligations of
the Guarantor under this Article IX shall be as aforesaid full, irrevocable,
unconditional and absolute and shall not be impaired, modified, discharged,
released or limited by any occurrence or condition whatsoever, including,
without limitation, (i) any compromise, settlement, release, waiver, renewal,
extension, indulgence or modification of, or any change in, any of the
obligations and liabilities of any other obligor with respect to the Securities
contained in any of the Securities or this Indenture, (ii) any impairment,
modification, release or limitation of the liability of the Company, the
Guarantor or any of their respective estates in bankruptcy, or any remedy for
the enforcement thereof, resulting from the operation of any present or future
provision of any applicable Bankruptcy Law, as amended, or other statute or from
the decision of any court, (iii) the assertion or exercise by the Company, the
Guarantor or the Trustee of any rights or remedies under any of the Securities
or this Indenture or its delay in or failure to assert or exercise any such
rights or remedies, (iv) the assignment or the purported assignment of any
property as security for any of the Securities, including all or any part of the
rights of the Company or the Guarantor under this Indenture, (v) the extension
of the time for payment by the Company or the Guarantor of any payments or other
sums or any part thereof owing or payable under any of the terms and provisions
of any of the Securities or this Indenture or of the time for performance by the
Company or the Guarantor of any other obligations under or arising out of any
such terms and provisions or the extension or the renewal of any thereof, (vi)
the modification or amendment (whether material or otherwise) of any duty,
agreement or obligation set forth in this Indenture of any other obligor with
respect to the Securities, (vii) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar proceeding
affecting, either of the Company or the Guarantor or any of their respective
assets, or the disaffirmance of any of the Securities, the Guarantees or this
Indenture in any such proceeding, (viii) the release or discharge of the Company
or the Guarantor from the performance or observance of any agreement,
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covenant, term or condition contained in any of such instruments by operation of
law, (ix) the unenforceability of any of the obligations of any of the other
obligors under the Securities, the Guarantees or this Indenture, (x) any change
in the name, business, capital structure, corporate existence, or ownership of
the Company or the Guarantor, or (xi) any other circumstance which might
otherwise constitute a defense available to, or a legal or equitable discharge
of, a surety or the Guarantor.
(d) The Guarantor hereby (i) waives diligence, presentment, demand of
payment, notice of acceptance, filing of claims with a court in the event of the
merger, insolvency or bankruptcy of the Company or the Guarantor, and all
demands and notices whatsoever, (ii) acknowledges that any agreement, instrument
or document evidencing the Guarantees may be transferred and that the benefit of
its obligations hereunder shall extend to each holder of any agreement,
instrument or document evidencing the Guarantees without notice to them and
(iii) covenants that its Guarantees will not be discharged except by complete
performance of the Guarantees or of the obligations guaranteed thereby. The
Guarantor further agrees that if at any time all or any part of any payment
theretofore applied by any Person to any Guarantee is, or must be, rescinded or
returned for any reason whatsoever, including, without limitation, the
insolvency, bankruptcy or reorganization of the Guarantor, such Guarantee shall,
to the extent that such payment is or must be rescinded or returned, be deemed
to have continued in existence notwithstanding such application, and the
Guarantees shall continue to be effective or be reinstated, as the case may be,
as though such application had not been made.
(e) The Guarantor shall be subrogated to all rights of the Holders and the
Trustee against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Indenture; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation with respect to any of the
Securities until all of the Securities and the Guarantees thereof shall have
been paid in full or discharged.
(f) A director, officer, employee or stockholder, as such, of the Guarantor
shall not have any liability for any obligations of the Guarantor under this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation.
(g) No failure to exercise and no delay in exercising, on the part of the
Trustee or the Holders, any right, power, privilege or remedy under this Article
IX and the Guarantees shall operate as a waiver thereof, nor shall any single or
partial exercise of any rights, power, privilege or remedy preclude any other or
further exercise thereof, or the exercise of any other rights, powers,
privileges or remedies. The rights and remedies herein provided for are
cumulative and not exclusive of any rights or remedies provided in law or
equity. Nothing contained in this Article IX shall limit the right of the
Trustee or the Holders to take any action to accelerate the maturity of the
Securities pursuant to Article V or to pursue any rights or remedies hereunder
or under applicable law.
SECTION 9.02. Execution and Delivery of Notation of Guarantees. To
further evidence the Guarantees, the Guarantor hereby agrees that on the date of
this Indenture a notation of such Guarantees may be endorsed on each Security
authenticated and delivered by the Trustee and executed by either manual or
facsimile signature of an Officer of the Guarantor.
The Guarantor hereby agrees that its Guarantees shall remain in full force
and effect notwithstanding any failure to endorse on each Security a notation
relating to the Guarantee thereof.
If an Officer of the Guarantor whose signature is on this Indenture or a
Security no longer holds that office, or if any other or additional Person shall
have become a "Guarantor" hereunder in accordance with Section 4.01 or 4.02
hereof, at the time the Trustee authenticates such Security or at any time
thereafter, the Guarantor's Guarantee of such Security shall be valid
nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor and each other Person which may at
such time constitute the "Guarantor" hereunder.
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ARTICLE X
REDEMPTION
SECTION 10.01. Notices to Trustee. If the Company elects to redeem the
Securities pursuant to the redemption provisions of Section 10.07, it shall
furnish to the Trustee, at least five days before notice of such redemption is
to be given pursuant to Section 10.03, an Officers' Certificate setting forth
the Redemption Date, the principal amount of such Securities to be redeemed and
the Redemption Price (or the method of calculating the Redemption Price).
SECTION 10.02. Selection of Securities to be Redeemed. If less than all
of the Securities are to be redeemed, the Trustee shall select the Securities to
be redeemed by such method as the Trustee in its sole discretion shall deem fair
and appropriate. The particular Securities to be redeemed shall be selected,
unless otherwise provided herein, not less than five days before notice of such
redemption is to be given pursuant to Section 10.03, by the Trustee from the
outstanding Securities not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed. Securities and portions
of them selected shall be in amounts of $1,000 or integral multiples thereof.
Except as provided in the preceding sentence, provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption.
SECTION 10.03. Notices to Holders.
(a) At least 20 days but not more than 75 days before a Redemption Date,
the Company shall mail in conformity with Section 11.02 a notice of redemption
to each Holder whose Securities are to be redeemed. The notice shall identify
the Securities to be redeemed (including CUSIP numbers, if any) and shall state:
(i) the Redemption Date;
(ii) the Redemption Price (or the method of calculating the Redemption
Price);
(iii) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect the
Redemption Price;
(vi) that unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the Holders
is to receive payment of the Redemption Price upon surrender to the Paying
Agent of the Securities; and
(vii) the aggregate principal amount of Securities being redeemed.
If any of the Securities to be redeemed is in the form of a Global
Security, then the Company shall modify such notice to the extent necessary to
accord with the procedures of the Depositary applicable to redemptions.
(b) At the Company's request, the Trustee shall give the notice required in
Section 10.03(a) in the Company's name; provided, however, that the Company
shall deliver to the Trustee, at least 15 days prior to the requested mailing
date (unless the Trustee consents in writing to a shorter period), an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in Section 10.03(a).
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SECTION 10.04. Effect of Notices of Redemption. Once notice of redemption
is mailed pursuant to Section 10.03, Securities called for redemption become due
and payable on the Redemption Date at the Redemption Price. Upon surrender to
the Paying Agent, such Securities shall be paid out at the Redemption Price.
SECTION 10.05. Deposit of Redemption Price. At or prior to 11:00 a.m.
New
York City time on the Redemption Date, the Company shall deposit with the
Trustee or with the Paying Agent immediately available funds sufficient to pay
the Redemption Price of all Securities to be redeemed on that date. The Trustee
or the Paying Agent shall return to the Company any money not required for that
purpose less the expenses of the Trustee as provided herein.
If the Company complies with the preceding paragraph, interest on the
Securities or portions thereof to be redeemed (whether or not such Securities
are presented for payment) will cease to accrue on the applicable Redemption
Date. If any Security called for redemption shall not be so paid upon surrender
because of the failure of the Company to comply with the preceding paragraph,
then interest will be paid on the unpaid principal and premium, if any, from the
Redemption Date until such principal and premium are paid and, to the extent
lawful, on any interest not paid on such unpaid principal, in each case at the
rate provided in the Securities and in Section 3.01.
SECTION 10.06. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Company shall issue and the Trustee shall
authenticate for the Holder, at the expense of the Company, a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
SECTION 10.07. Optional Redemption. The Securities may be redeemed at any
time on such terms and subject to such conditions as are specified in such
Securities.
Any redemption pursuant to this Section 10.07 shall be made, to the extent
applicable, pursuant to the provisions of Sections 10.01 through 10.06.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control. If this Indenture excludes any provision of the TIA that is
required to be included, such provision shall be deemed included herein.
SECTION 11.02. Notices. Any notice or communication by the Company, the
Guarantor or the Trustee to the others is duly given if in writing and delivered
in person or mailed by first-class mail (registered or certified, return receipt
requested), telecopier or overnight air courier guaranteeing next day delivery,
to the other's address:
If to either the Company or the Guarantor, to it at:
Xxxxxx Industries, Inc.
000 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
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If to the Trustee:
Bank One, N.A.
0000 Xxxxxxx Xxxxxxx, Xxxxx 0X, XX0-0000
Xxxxxxxx, Xxxx 00000
Attention: Global Corporate Trust Services Group
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Each of the Company, the Guarantor and the Trustee by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
All notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Notwithstanding the foregoing, notices to the Trustee shall be effective only
upon receipt.
Any notice or communication to a Holder shall be mailed by first-class
mail, postage prepaid, to the Holder's address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company or the Guarantor mails a notice or communication to Holders,
it shall mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including, without limitation, notices to
the Trustee or the Company or the Guarantor by Holders, shall be in writing,
except as set forth below, and in the English language.
In case by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impossible to mail any notice required by this
Indenture, then such method of notification as shall be made with the approval
of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 11.03. Communication by Holders with Other Holders. Holders may
communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture, the Securities or the Guarantees. The
Company, the Guarantor, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company or the Guarantor to the Trustee to
take any action under this Indenture, the Company or the Guarantor shall, if
requested by the Trustee, furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
Notwithstanding the foregoing, no such Opinion of Counsel shall be required
in connection with the issuance of the Original Securities pursuant to the
Offering or of Series B Securities pursuant to the Exchange Offer.
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SECTION 11.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 11.06. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Registrar or the
Paying Agent may make reasonable rules and set reasonable requirements for its
functions.
SECTION 11.07. Legal Holidays. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
SECTION 11.08. No Recourse Against Others. A director, officer, employee
or stockholder of the Company or the Guarantor, as such, shall not have any
liability for any obligations of the Company or the Guarantor under the
Securities, the Guarantees or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release shall be part of the consideration for the issue of the Securities.
SECTION 11.09. Governing Law. This Indenture, the Securities and the
Guarantees shall be governed by and constructed in accordance with the laws of
the State of
New York.
SECTION 11.10. Consent to Jurisdiction and Service of Process. The
Guarantor is not organized under the laws the United States (including the
States thereof and the District of Columbia) and therefore it hereby appoints
the Company as the authorized agent thereof (the "Authorized Agent") upon whom
process may be served in any action, suit or proceeding arising out of or based
on this Indenture or the Securities which may be instituted in the Supreme Court
of the State of
New York or the United States District Court for the Southern
District of
New York, in either case in the Borough of Manhattan, The City of
New York, by the Holder of any Security, and to the fullest extent permitted by
applicable law, the Guarantor hereby waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding and expressly and
irrevocably accepts and submits, for the benefit of the Holders from time to
time of the Securities, to the nonexclusive jurisdiction of any such court in
respect of any such action, suit or proceeding, for itself and with respect to
its properties, revenues and assets. Such appointment shall be irrevocable
unless and until the appointment of a successor authorized agent for such
purpose, and such successor's acceptance of such appointment, shall have
occurred. The Guarantor agrees to take any and all actions, including the filing
of any and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent with respect to any such action shall be deemed, in every
respect, effective service of process upon the Guarantor. Notwithstanding the
foregoing, any action against the Guarantor arising out of or based on any
Security or the Guarantees may also be instituted by the Holder of such Security
in any court in the jurisdiction of organization of the Guarantor, and the
Guarantor expressly accepts the jurisdiction of any such court in any such
action. The Company hereby accepts the foregoing appointment as agent for
service of process.
SECTION 11.11. Waiver of Immunity. To the extent that the Guarantor or
any of its properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the
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giving of any relief in any thereof, from set-off or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Indenture or the Securities, the Guarantor, to the maximum extent permitted
by law, hereby irrevocably and unconditionally waives, and agrees not to plead
or claim, any such immunity and consents to such relief and enforcement.
SECTION 11.12. Judgment Currency. The Guarantor agrees to indemnify the
Trustee and each Holder against any loss incurred by it as a result of any
judgment or order being given or made and expressed and paid in a currency (the
"Judgment Currency") other than U.S. dollars and as a result of any variation as
between (i) the rate of exchange at which the U.S. dollar amount is converted
into the Judgment Currency for the purpose of such judgment or order and (ii)
the spot rate of exchange in The City of
New York at which the Trustee or such
Holder on the date of payment of such judgment or order is able to purchase U.S.
dollars with the amount of the Judgment Currency actually received by the
Trustee or such Holder. The foregoing indemnity shall constitute a separate and
independent obligation of the Guarantor and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "spot
rate of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, U.S. dollars.
SECTION 11.13. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company, the Guarantor or any other Subsidiary of the Guarantor. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.14. Successors. All agreements of the Company and the
Guarantor in this Indenture and the Securities shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 11.15. Severability. In case any provision in this Indenture or
in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 11.16. Counterpart Originals. The parties may sign any number of
copies of this Indenture by manual or facsimile signature. Each signed copy
shall be an original, but all of them together represent the same agreement.
SECTION 11.17. Table of Contents, Headings, etc. The Table of Contents
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
COMPANY:
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and
Chief Operating Officer
GUARANTOR:
XXXXXX INDUSTRIES, LTD.
By: /s/ Xxxxxx XxXxxxxxx
------------------------------------
Name: Xxxxxx XxXxxxxxx
Title: Vice President and
Corporate Secretary
Signed in St. Xxxxxxx, Barbados
TRUSTEE:
BANK ONE, NA., as Trustee
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
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EXHIBIT A
FACE OF SECURITY
GLOBAL SECURITY LEGEND
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY 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. THE DEPOSITORY TRUST COMPANY SHALL ACT AS THE DEPOSITARY UNTIL A
SUCCESSOR SHALL BE APPOINTED BY THE COMPANY AND THE REGISTRAR. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), 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.*
PRIVATE PLACEMENT LEGEND
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. BY
ITS ACQUISITION OF THIS SECURITY OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
1. AGREES, ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR
WHICH IT HAS PURCHASED SECURITIES, THAT IT WILL OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH EITHER THE COMPANY OR ANY OF ITS AFFILIATES WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO XXXXXX
INDUSTRIES LTD. OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN
RULE 144A, THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S, OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND, IN EACH OF THE
---------------
* This paragraph should be included only if the Security is a Global Security.
A-1
CASES ABOVE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
2. AGREES THAT, BEFORE THE HOLDER OFFERS, SELLS OR OTHERWISE TRANSFERS
THIS SECURITY, THE COMPANY AND THE REGISTRAR MAY REQUIRE THE HOLDER OF THIS
SECURITY TO DELIVER A WRITTEN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION THAT THEY REASONABLY REQUIRE TO CONFIRM THAT SUCH PROPOSED TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
AS USED IN THIS SECURITY, THE TERMS "OFFSHORE TRANSACTION," "U.S. PERSON"
AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM WITHIN REGULATION S.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION OF THIS SECURITY THE HOLDER THEREOF WILL BE DEEMED TO
HAVE REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY
SUCH HOLDER TO ACQUIRE AND HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN
EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OF PLANS, INDIVIDUAL
RETIREMENT ACCOUNTS OR OTHER ARRANGEMENTS THAT ARE SUBJECT TO SECTION 4975 OF
THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR PROVISIONS
UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE
SIMILAR TO SUCH PROVISIONS OR ERISA OR THE CODE ("SIMILAR LAWS"), OR OF AN
ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE "PLAN ASSETS" OF SUCH
PLANS, ACCOUNTS OR ARRANGEMENTS, OR (II) THE PURCHASE AND HOLDING OF THIS
SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY
APPLICABLE SIMILAR LAWS.**
REGULATION S TEMPORARY GLOBAL SECURITY LEGEND
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE
HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SECURITY
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.***
144A SECURITY LEGEND
EACH PURCHASER OF THE SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS
SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.****
---------------
** These paragraphs should be included only if the Security is a Restricted
Definitive Security or a Restricted Global Security.
*** This paragraph should be included only if the Security is a Regulation S
Temporary Global Security.
**** This paragraph should be included only if the Security is a Series A
Security that is a 144A Global Security or a Definitive Security sold to
QIBs pursuant to Rule 144A.
A-2
XXXXXX INDUSTRIES, INC.
5.375% SERIES [A/B] SENIOR NOTE DUE 2012
CUSIP No. 629568 AG 1 $
Xxxxxx Industries, Inc., a Delaware corporation (the "Company"), for value
received promises to pay to or registered assigns, the principal sum of $
Dollars [or such greater or lesser amount as is indicated on the Schedule of
Exchanges of Securities on the other side of this Security*] on August 15, 2012.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by one of its duly authorized officers.
Dated:
XXXXXX INDUSTRIES, INC.
By:
------------------------------------
Certificate of Authentication:
BANK ONE, N.A.,
as Trustee, certifies that this is one
of
the Securities referred to in the
within-
mentioned Indenture.
By:
----------------------------------
Authorized Signatory
---------------
* This phrase should be included only if the Security is a Global Security.
A-3
REVERSE OF SECURITY
XXXXXX INDUSTRIES, INC.
5.375% SERIES A/B SENIOR NOTE DUE 2012
This Security is one of a duly authorized issue of 5.375% Series A/B Senior
Notes due 2012 (the "Securities") of Xxxxxx Industries, Inc., a Delaware
corporation (the "Company").
1. Interest. The Company promises to pay interest on the principal amount
of this Security at 5.375% per annum from August 22, 2002 until maturity. The
Company will pay interest semiannually on February 15 and August 15 of each year
(each an "Interest Payment Date"), beginning February 15, 2003, or if any such
day is not a Business Day, on the next succeeding Business Day. Interest on this
Security will accrue from the most recent Interest Payment Date on which
interest has been paid or, if no interest has been paid, from August 22, 2002;
provided that if there is no existing Default in the payment of interest, and if
this Security is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such next succeeding Interest Payment Date. Further, the Company shall pay
interest on overdue principal, premium, if any, Liquidated Damages, if any, and
Additional Amounts, if any, from time to time on demand at a rate equal to the
interest rate then in effect; it shall pay interest, Liquidated Damages, if any,
and Additional Amounts, if any, on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand 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 this Security
(except defaulted interest) to the Persons who are registered Holders of this
Security at the close of business on the record date next preceding the Interest
Payment Date, even if this Security is canceled after such record date and on or
before such Interest Payment Date. The Holder must surrender this Security to a
Paying Agent to collect payments of principal and premium, if any. The Company
will pay the principal of and premium, if any, Liquidated Damages, if any, and
Additional Amounts, if any, and interest on this Security in money of the United
States of America that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of the Securities represented by a
Global Security (including principal, premium, if any, Liquidated Damages, if
any, Additional Amounts, if any, and interest) will be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company. The Company will make all payments in respect of a certificated
Security (including principal, premium, if any, Liquidated Damages, if any,
Additional Amounts, if any, and interest) at the Corporate Trust Office of the
Trustee or by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on a certificated Security will be made by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than 30 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
3. Ranking and Guarantees. This Security is a senior unsecured obligation
of the Company and is guaranteed pursuant to guarantees (the "Guarantees") by
Xxxxxx Industries Ltd., a Bermuda exempted company (the "Guarantor"). The
Guarantees are senior unsecured obligations of the Guarantor. References herein
to the Indenture or the Securities shall be deemed also to refer to the
Guarantees set forth in the Indenture except where the context otherwise
requires.
4. Optional Redemption. This Security will be redeemable, in whole or in
part, at any time, at the Company's option, at a Redemption Price equal to the
greater of (1) 100% of the principal amount of this Security then outstanding to
be redeemed, or (2) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (exclusive of interest accrued to the
Redemption Date) computed by discounting such payments to the Redemption Date on
a semiannual basis (assuming a 360-day year consisting of twelve 30-day months)
at a rate equal to the sum of 30 basis points plus the Adjusted Treasury Rate on
the third Business Day prior to the Redemption Date, as calculated by an
A-4
Independent Investment Banker, plus accrued and unpaid interest, up to, but not
including the Redemption Date.
"Adjusted Treasury Rate" means, with respect to any Redemption Date, 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 U.S. Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities" for the maturity corresponding
to the Optional Redemption Comparable Treasury Issue (if no maturity is within
three months before or after the remaining term of this Security, yields for the
two published maturities most closely corresponding to the Optional Redemption
Comparable Treasury Issue will be determined and the Adjusted Treasury Rate will
be interpolated or extrapolated from such yields on a straight line basis,
rounding to the nearest month); or 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 annum equal to the semiannual equivalent yield to
maturity of the Optional Redemption Comparable Treasury Issue, calculated using
a price for the Optional Redemption Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Optional Redemption Comparable
Treasury Price for such redemption date.
"Independent Investment Banker" means Xxxxxx Brothers Inc., or if such firm
is unwilling or unable to serve as such, an independent investment and banking
institution of national standing appointed by the Trustee.
"Optional Redemption Reference Treasury Dealer" means each of up to five
dealers to be selected by the Company and the Guarantor, and their respective
successors; provided that if any of the foregoing ceases to be, and has no
affiliate that is, a primary U.S. governmental securities dealer (a "Primary
Treasury Dealer"), the Company and the Guarantor will substitute for it another
Primary Treasury Dealer.
"Optional Redemption Comparable Treasury Issue" means the U.S. Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities to be redeemed 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 this Security, or, if, in the reasonable
judgment of the Independent Investment Banker, there is no such security, then
the Optional Redemption Comparable Treasury Issue will mean the U.S. Treasury
security or securities selected by the Independent Investment Banker as having
an actual or interpolated maturity or maturities comparable to the remaining
term of this Security.
"Optional Redemption Comparable Treasury Price" means (1) the average of
five Optional Redemption Reference Treasury Dealer Quotations for the applicable
redemption date, after excluding the highest and lowest Optional Redemption
Reference Treasury Dealer Quotations, or (2) if the Independent Investment
Banker obtains fewer than five such Optional Redemption Reference Treasury
Dealer Quotations, the average of all such quotations.
"Optional Redemption Reference Treasury Dealer Quotations" means, with
respect to each Optional Redemption Reference Treasury Dealer and any Redemption
Date for this Security, the average, as determined by the Independent Investment
Banker of the bid and asked prices for the Optional Redemption Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Independent Investment Banker and the Trustee at 5:00
p.m.,
New York City time, on the third Business Day preceding such Redemption
Date.
5. Paying Agent and Registrar. Initially, Bank One, N.A. (the "Trustee"),
the Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar, co-registrar or additional
paying agent without notice to any Holder. The Guarantor or any of its
Subsidiaries may act in any such capacity.
6. Indenture. The Company issued this Security under an Indenture dated
as of August 22, 2002 (as amended, supplemented or otherwise modified from time
to time, the "Indenture") among the
A-5
Company, the Guarantor and the Trustee. The terms of this Security include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb), as
in effect on the date of execution of the Indenture. This Security and the
Guarantees are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. Capitalized terms used but
not defined in this Security have the respective meanings given to such terms in
the Indenture.
7. Denominations, Transfer, Exchange. The Securities are issuable only in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of this Security may be registered and this
Security 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 to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not exchange or register
the transfer of this Security during the period between a record date and the
corresponding Interest Payment Date.
8. Persons Deemed Owners. The registered Holder of a Security shall be
treated as its owner for all purposes.
9. Amendments and Waivers. Subject to certain exceptions and limitations,
the Indenture or this Security may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then
outstanding Securities, and compliance in a particular instance by the Company
or the Guarantor with any provision of the Indenture with respect to the
Securities may be waived (other than certain provisions, including any
continuing Default or Event of Default in the payment of the principal of or
premium, if any, Additional Amounts, if any, or interest on the Securities) by
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding in accordance with the terms of the Indenture.
Without the consent of any Holder, the Company, the Guarantor and the Trustee
may amend or supplement the Indenture or this Security to convey, transfer,
assign, mortgage or pledge to the Trustee as security for this Security any
property or assets; to evidence the succession of another entity to the Company
or the Guarantor, or successive successions, and the assumption by the successor
entity of the covenants, agreements and obligations of the Company or the
Guarantor pursuant to Section 4.01 or 4.02 of the Indenture; to add to the
covenants of the Company or the Guarantor such further covenants, restrictions,
conditions or provisions as the Company or the Guarantor and the Trustee shall
consider to be for the protection of the Holders of Securities, to surrender any
right or power conferred upon the Company or the Guarantor, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions of an Event of
Default permitting the enforcement of all or any of the several remedies
provided in the Indenture, provided that in respect of any such additional
covenant, restriction, condition or provision such amendment or supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of
the Securities to waive such an Event of Default; to cure any ambiguity or to
correct or supplement any provision contained in the Indenture or in any
supplemental indenture which may be defective or inconsistent with any other
provision contained in the Indenture or in any supplemental indenture, provided
that no such action shall adversely affect the interests of the Holders of this
Security; to provide for uncertificated Securities in addition to or in place of
certificated Securities, subject to any restrictions contained in the Indenture;
to comply with any requirements, including the requirements of the SEC, in order
to effect or maintain the qualification of the Indenture under the TIA; and to
provide for any additional guarantees of the Securities or make any other change
that does not adversely affect the rights under the Indenture of any Holder.
The right of any Holder to participate in any consent required or sought
pursuant to any provision of the Indenture (and the obligation of the Company to
obtain any such consent otherwise required from such Holder) may be subject to
the requirement that such Holder shall have been the Holder of record of
A-6
this Security as of a date identified by the Trustee in a notice furnished to
Holders in accordance with the terms of the Indenture.
10. Defaults and Remedies. Events of Default include: (i) default in the
payment of the principal of or premium, if any, on any Security at its Maturity,
and continuance of such default for a period of 10 days; or (ii) default in the
payment of interest, Liquidated Damages, if any, or Additional Amounts, if any,
upon any of the Securities when it becomes due and payable, and continuance of
such default for a period of 30 days; or (iii) default in the performance or
observance, or breach, of any covenant of the Company or the Guarantor in any
Security or the Indenture (other than a covenant a default in whose performance
or whose breach is elsewhere in Section 5.01 of the Indenture specifically dealt
with), and continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the
Holders of at least 25% in aggregate principal amount of the outstanding
Securities a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" under the
Indenture; or (iv) certain events specified in the Indenture relating to the
bankruptcy, insolvency or reorganization of the Company or the Guarantor; or
(vi) the Guarantees cease to be in full force and effect or become unenforceable
or invalid or are declared null and void (other than in accordance with the
terms of such Guarantees) or the Guarantor denies or disaffirms its obligations
under such Guarantees.
If an Event of Default (other than an Event of Default referred to in
clause (iv) of the preceding paragraph) with respect to this Security occurs and
is continuing, the Trustee by notice to the Company and the Guarantor, or by the
Holders of at least 25% in aggregate principal amount of the then outstanding
Securities by written notice to the Company, the Guarantor and the Trustee, may
declare the principal of and Liquidated Damages, if any, Additional Amounts, if
any, and interest on all then outstanding Securities to be due and payable
immediately. The amount due and payable upon the acceleration of any Security is
equal to 100% of the principal amount thereof plus Liquidated Damages, if any,
Additional Amounts, if any, and accrued interest to the date of payment. Holders
may not enforce the Indenture or this Security except as provided in the
Indenture. The Trustee does require indemnity reasonably satisfactory to it
before it enforces the Indenture or this Security. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then
outstanding Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders notice of any continuing default
(except a default in payment of principal or premium, if any, or interest) if it
determines that withholding notice is in their interests. Each of the Company
and the Guarantor must furnish an annual compliance certificate to the Trustee.
11. Additional Amounts. If the Company or the Guarantor is required to
withhold or deduct any amount for or on account of any Taxes for any payment
made under or with respect to this Security, it will pay any Additional Amounts.
12. Discharge or Defeasance Prior to Maturity. The Indenture shall be
discharged and canceled upon the payment of all of the Securities and shall be
discharged or defeased except for certain obligations upon the irrevocable
deposit with the Trustee of cash, or U.S. Government Obligations or a
combination thereof sufficient for such payment.
13. Trustee Dealings with the Company and the Guarantor. The Trustee in
its individual or any other capacity may become the owner or pledgee of this
Security and may otherwise deal with the Company, the Guarantor or any of their
Affiliates with the same rights it would have if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee or
stockholder of the Company or the Guarantor, as such, shall not have any
liability for any obligations of the Company or the Guarantor under this
Security, the Guarantees or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each Holder by accepting
this Security waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of this Security.
A-7
15. Authentication. This Security 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 an authorized signatory of the Trustee,
which signature shall be conclusive evidence that this Security has been
authenticated under the Indenture.
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
a CUSIP number to be printed on this Security as a convenience to the Holders of
this Security. No representation is made as to the correctness of such number
either as printed on this Security or as contained in any notice of a redemption
and that reliance may be placed only on the other identification numbers printed
on this Security.
17. 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).
18. Governing Law. The Indenture, this Security and the Guarantees shall
be governed by and constructed in accordance with, the laws of the State of New
York.
19. Additional Rights and Obligations of Holders. In addition to the
rights provided to Holders of Securities under the Indenture, this Security and
the Guarantees, Holders shall have all the rights set forth in the Registration
Rights Agreement, dated August 22, 2002 (the "Registration Rights Agreement"),
among the Company, the Guarantor and the Initial Purchaser. Each Holder, by his
acceptance thereof, acknowledges and agrees to the provisions of the
Registration Rights Agreement, including without limitation the obligations of
the Holders with respect to a registration and the indemnification of the
Company and the Guarantor to the extent provided therein.*
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Request may be made to it at:
Xxxxxx Industries, Inc.
000 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
---------------
* This paragraph should be included only if the Security is a Series A Security.
A-8
FORM OF NOTATION ON SECURITY
RELATING TO GUARANTEES
The Guarantor (which term includes any successor Person in such capacity
under the Indenture), has fully, unconditionally and absolutely guaranteed, to
the extent set forth in the Indenture and subject to the provisions in the
Indenture, the due and punctual payment of the principal of and premium, if any,
Liquidated Damages, if any, Additional Amounts, if any, and interest on these
Securities and all other amounts due and payable under the Indenture and these
Securities by the Company.
The obligations of the Guarantor to the Holders of Securities and to the
Trustee pursuant to the Guarantees and the Indenture are expressly set forth in
Article IX of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Guarantees.
Guarantor:
XXXXXX INDUSTRIES LTD.
By: --------------------------------
Name:
Title:
A-9
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(INSERT ASSIGNEE'S SOCIAL SECURITY OR TAX I.D. NUMBER)
--------------------------------------------------------------------------------
(PRINT OR TYPE ASSIGNEE'S NAME, ADDRESS AND ZIP CODE)
and irrevocably appoint ________________________ as agent to transfer this
Security 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 SECURITY)
Signature
Guarantee:
--------------------------------------------------------------------------------
(PARTICIPANT IN A RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM)
A-10
SCHEDULE OF EXCHANGES OF SECURITIES**
The following exchanges, redemptions or repurchases of a part of this
Global Security have been made:
PRINCIPAL AMOUNT OF SIGNATURE OF
AMOUNT OF DECREASE AMOUNT OF INCREASE GLOBAL SECURITY AUTHORIZED OFFICER,
IN PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT FOLLOWING SUCH TRUSTEE OR
DATE OF TRANSACTION OF GLOBAL SECURITY OF GLOBAL SECURITY DECREASE (OR INCREASE) SECURITIES CUSTODIAN
---------------
** This Schedule should be included only if the Security is a Global Security.
A-11
EXHIBIT B
[RESERVED]
B-1
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
Xxxxxx Industries, Inc.
000 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Bank One, N.A.
000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Global Corporate Trust Services Group
RE: 5.375% SENIOR NOTES DUE 2012
Reference is hereby made to the Indenture, dated as of August 22, 2002 (the
"Indenture"), among Xxxxxx Industries, Inc., as issuer (the "Company"), Xxxxxx
Industries Ltd., as guarantor (the "Guarantor"), and Bank One, N.A., as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
(the "Transferor") owns and proposes to transfer the Security[s]
or interest in such Security[s] specified in Annex A hereto, in the principal
amount of $ in such Security[s] or interests (the "Transfer"), to
(the "Transferee"), as further specified in Annex A hereto. In connection with
the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE IS A QIB IN ACCORDANCE WITH RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the U.S. Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Security is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Security for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any State of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Security will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Global Security and/or
the Definitive Security and in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY PURSUANT TO REGULATION
S. The Transfer is being effected pursuant to and in accordance with Regulation
S under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Distribution
Compliance Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred
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beneficial interest or Definitive Security will be subject to the restrictions
on Transfer enumerated in the Private Placement Legend printed on the Global
Security and/or the Definitive Security and in the Indenture and the Securities
Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Securities and
Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any State of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to Xxxxxx Industries Ltd. or
any of its Subsidiaries;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED DEFINITIVE SECURITY.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State
of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will no longer be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Securities, or Restricted
Definitive Securities and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule
144 or Regulation S and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of
any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Security will
not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Securities or Restricted
Definitive Securities and in the Indenture.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Guarantor.
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated: ,
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the Global Security (CUSIP [ ]), or
(b) [ ] a Restricted Definitive Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the Global Security (CUSIP [ ]); or
(b) [ ] a Restricted Definitive Security; or
(c) [ ] an Unrestricted Definitive Security, in accordance with the
terms of the Indenture.
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EXHIBIT D
FORM OF CERTIFICATE OF EXCHANGE
Xxxxxx Industries, Inc.
000 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Bank One, N.A.
000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Global Corporate Trust Services Group
RE: 5.375% SENIOR NOTES DUE 2012
Reference is hereby made to the Indenture, dated as of August 22, 2002 (the
"Indenture"), among Xxxxxx Industries, Inc., as issuer (the "Company"), Xxxxxx
Industries Ltd., as guarantor (the "Guarantor"), and Bank One, N.A., as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
(the "Owner") owns and proposes to exchange the Security[s] or
interest in such Security[s] specified herein, in the principal amount of
$ in such Security[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN
A RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED DEFINITIVE SECURITIES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY:
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
SECURITY. In connection with the Exchange of the Owner's beneficial
interest in a Restricted Global Security for a beneficial interest in an
Unrestricted Global Security in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global
Securities and pursuant to and in accordance with the U.S. Securities Act
of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act and
(iv) the beneficial interest in an Unrestricted Global Security is being
acquired in compliance with any applicable blue sky securities laws of any
State of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global
Security for an Unrestricted Definitive Security, the Owner hereby
certifies (i) the Definitive Security is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted
Global Securities and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the Definitive Security is being acquired
in compliance with any applicable blue sky securities laws of any State of
the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with
the Owner's Exchange of a Restricted Definitive Security for a beneficial
interest in an
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Unrestricted Global Security, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Securities and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act and
(iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any State of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO
UNRESTRICTED DEFINITIVE SECURITY. In connection with the Owner's Exchange
of a Restricted Definitive Security for an Unrestricted Definitive
Security, the Owner hereby certifies (i) the Unrestricted Definitive
Security is being acquired for the Owner's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Securities and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act and
(iv) the Unrestricted Definitive Security is being acquired in compliance
with any applicable blue sky securities laws of any State of the United
States.
2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL SECURITIES FOR RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL SECURITIES:
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL SECURITY TO RESTRICTED DEFINITIVE SECURITY. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Security for
a Restricted Definitive Security with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Security is being acquired for
the Owner's own account without transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Security issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Security and in the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY. In connection with the
Exchange of the Owner's Restricted Definitive Security for a beneficial interest
in the [CHECK ONE] 144A Global Security, Regulation S Global Security with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Securities and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any State of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Security
and in the Indenture and the Securities Act.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Guarantor.
--------------------------------------
[Insert Name of Owner]
By:
--------------------------------------
Name:
Title:
Dated: ,
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