EXHIBIT 4.5
FIRST SUPPLEMENTAL INDENTURE
BETWEEN
XXXXX INDUSTRIES, INC.
AND
WILMINGTON TRUST COMPANY
DATED AS OF JANUARY 28, 1997
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
SECTION 1.1 Definition of Terms. 1
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount. 2
SECTION 2.2 Maturity. 3
SECTION 2.3 Form and Payment. 3
SECTION 2.4 Global Debenture. 3
SECTION 2.5 Interest. 4
ARTICLE III REDEMPTION OF THE DEBENTURES
SECTION 3.1 Redemption; Conditions to Redemption. 5
SECTION 3.2 No Sinking Fund. 7
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period. 7
SECTION 4.2 Notice of Extension. 8
ARTICLE V EXPENSES
SECTION 5.1 Payment of Expenses. 8
SECTION 5.2 Payment Upon Resignation or Removal. 9
ARTICLE VI FORM OF DEBENTURE
SECTION 6.1 Form of Debenture. 9
ARTICLE VII ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1 Original Issue of Debentures. 17
ARTICLE VIII MISCELLANEOUS
SECTION 8.1 Ratification of Indenture. 17
SECTION 8.2 Trustee Not Responsible for Recitals. 17
SECTION 8.3 Governing Law. 17
SECTION 8.4 Separability. 17
SECTION 8.5 Counterparts. 18
FIRST SUPPLEMENTAL INDENTURE, dated as of January 28, 1997 (the
"First Supplemental Indenture"), between Xxxxx Industries, Inc., an Indiana
corporation (the "Company"), and Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as trustee
(the "Trustee") under the Indenture dated as of January 28, 1997 between
the Company and the Trustee (the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured
junior subordinated debt securities to be issued from time to time in one
or more series as might be determined by the Company under the Indenture,
in an unlimited aggregate principal amount which may be authenticated and
delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debt
Securities to be known as its 9.50% Junior Subordinated Deferrable Interest
Debentures due 2027 (the "Debentures"), the form and substance of such
Debentures and the terms, provisions and conditions thereof to be set forth
as provided in the Indenture and this First Supplemental Indenture;
WHEREAS, Xxxxx Capital I, a Delaware statutory business trust
(the "Trust"), has offered to the public $100,000,000 aggregate liquidation
amount of its 9.50% Capital Securities (the "Capital Securities"),
representing undivided beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of $3,100,000
aggregate liquidation amount of its 9.50% Common Securities, in
$103,100,000 aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance
with its terms, and to make the Debentures, when executed by the Company
and authenticated and delivered by the Trustee, the valid obligations of
the Company, have been performed, and the execution and delivery of this
First Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of
the Debentures by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when
used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Administrative Trustee; (ii) Capital Security Certificate;
(iii) Clearing Agency; (iv) Delaware Trustee; (v) Distributions; (vi)
Pricing Agreement; (vii) Institutional Trustee; (viii) Tax Event; and (ix)
Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section
2.5.
"Compounded Interest" shall have the meaning set forth in Section
4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Declaration" means the Amended and Restated Declaration of Trust
of Xxxxx Capital I, a Delaware statutory business trust, dated as of
January 28, 1997, including the Terms of Securities attached thereto as
Annex I.
"Deferred Interest" shall have the meaning set forth in Section
4.1.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Global Debenture" shall have the meaning set forth in Section
2.4.
"Maturity Date" means the date on which the Debentures mature and
on which the principal shall be due and payable together with all accrued
and unpaid interest thereon including Compounded Interest and Additional
Interest, if any.
"Non Book-Entry Capital Securities" shall have the meaning set
forth in Section 2.4.
"Redemption Price" shall have the meaning set forth in Section
3.2.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
There is hereby authorized a series of Debt Securities designated
the "9.50% Junior Subordinated Deferrable Interest Debentures due 2027",
limited in aggregate principal amount to $103,100,000, which amount shall
be as set forth in any written order of the Company for the authentication
and delivery of Debentures pursuant to Section 2.4 of the Indenture.
SECTION 2.2 Maturity.
The Maturity Date is February 1, 2027.
SECTION 2.3 Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued
in fully registered certificated form without interest coupons. Principal
and interest on the Debentures issued in certificated form will be payable,
the transfer of such Debentures will be registrable and such Debentures
will be exchangeable for Debentures bearing identical terms and provisions
at the office or agency of the Trustee; provided, however, that payment of
interest may be made at the option of the Company by check mailed to the
holder at such address as shall appear in the Security Register or by wire
transfer to an account appropriately designated by such holder.
Notwithstanding the foregoing, so long as the holder of any Debentures is
the Institutional Trustee, the payment of the principal of and interest
(including Compounded Interest and Additional Interest, if any) on such
Debentures held by the Institutional Trustee will be made at such place and
to such account as may be designated by the Institutional Trustee.
SECTION 2.4 Global Debenture.
(a) In the event that the Debentures are distributed to holders
of Capital Securities in liquidation of such holders' interests in the
Trust:
(i) the Debentures may be presented to the Trustee by the
Institutional Trustee in exchange for a global Debenture in an aggregate
principal amount equal to the aggregate principal amount of all outstanding
Debentures (a "Global Debenture"), to be registered in the name of the
Depositary, or its nominee, and delivered by the Trustee to the Depositary
for crediting to the accounts of its participants pursuant to the
instructions of the Regular Trustees. The Company, upon any such
presentation, shall execute a Global Debenture in such aggregate principal
amount and deliver the same to the Trustee for authentication and delivery
in accordance with the Indenture and this First Supplemental Indenture.
Payments on the Debentures issued as a Global Debenture will be made to the
Depositary; and
(ii) if any Capital Securities are held in non book-entry
certificated form, the Debentures may be presented to the Trustee by the
Institutional Trustee and any Capital Security Certificate which represents
Capital Securities other than Capital Securities held by the Clearing
Agency or its nominee ("Non Book-Entry Capital Securities") will be deemed
to represent beneficial interests in Debentures presented to the Trustee by
the Institutional Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Capital Securities until
such Capital Security Certificates are presented to the Security Registrar
for transfer or reissuance, at which time such Capital Security
Certificates will be cancelled and a Debenture, registered in the name of
the holder of the Capital Security Certificate or the transferee of the
holder of such Capital Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate liquidation amount of the
Capital Security Certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this First Supplemental Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal amount that
were presented by the Institutional Trustee to the Trustee will be deemed
to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor
Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary or if at any time the
Depositary shall no longer be registered or in good standing under the
Exchange Act, or other applicable statute or regulation, and a successor
Depositary is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may
be, the Company will execute, and, subject to Article II of the Indenture,
the Trustee, upon written notice from the Company, will authenticate and
deliver the Debentures in definitive registered form, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. In
addition, the Company may at any time determine, in its sole discretion,
that the Debentures shall no longer be represented by a Global Debenture.
In such event the Company will execute, and subject to Section 2.11(c) of
the Indenture, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver
the Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. Upon
the exchange of the Global Debenture for such Debentures in definitive
registered form without coupons, in authorized denominations, the Global
Debenture shall be cancelled by the Trustee. Such Debentures in definitive
registered form issued in exchange for the Global Debenture shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Debentures to the Depositary for delivery to the Persons in
whose names such Debentures are so registered.
SECTION 2.5 Interest.
(a) Each Debenture will bear interest at the rate of 9.50% per
annum (the "Coupon Rate") from the original date of issuance until the
principal thereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest, at the Coupon Rate,
compounded semi-annually, payable (subject to the provisions of Article IV)
semi-annually in arrears on February 1 and August 1 of each year (each, an
"Interest Payment Date"), commencing August 1, 1997, to the Person in whose
name such Debenture or any predecessor Debenture is registered, at the
close of business on the regular record date for such interest installment,
which, in respect of any Debentures of which the Institutional Trustee is
the holder of a Global Debenture, shall be the close of business on the
Business Day next preceding that Interest Payment Date. Notwithstanding the
foregoing sentence, if the Capital Securities are no longer in book-entry
only form or if the Debentures are not held by the Institutional Trustee
and are not represented by a Global Debenture, the Company may select a
regular record date for such interest installment which shall be any date
at least one Business Day before an Interest Payment Date.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full semi-annual period for which interest is
computed will be computed on the basis of the actual number of days
elapsed. In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date.
(c) If, at any time while the Institutional Trustee is the
holder of any Debentures, the Trust or the Institutional Trustee is
required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United
States, or any other taxing authority, then, in any case, the Company will
pay as additional interest ("Additional Interest") on the Debentures held
by the Institutional Trustee, such additional amounts as shall be required
so that the net amounts received and retained by the Trust and the
Institutional Trustee after paying such taxes, duties, assessments or other
governmental charges will be equal to the amounts the Trust and the
Institutional Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Redemption; Conditions to Redemption.
(a) Subject to the provisions of Article III of the Indenture,
the Company shall have the right to redeem the Debentures, (i) on or after
February 1, 2007, in whole at any time or in part from time to time, or
(ii) in the event that a Tax Event shall occur and be continuing, then
prior to February 1, 2007 in whole (but not in part) within 90 days
following the occurrence of such Tax Event, upon not less than 30 nor more
than 60 days' prior written notice, at the redemption price specified in
Section 3.1(b) below (the "Redemption Price"), plus any accrued and unpaid
interest, including Additional Interest, if any, thereon to the date of
such redemption (the "Redemption Date"); provided, however, that the
Company
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shall not redeem the Debentures in part unless all accrued but unpaid
interest has been paid in full on all of the Debentures Outstanding for all
semi-annual interest payment periods terminating on or prior to the
Redemption Date. If the Debentures are only partially redeemed pursuant to
this Section 3.1(a), the Debentures will be redeemed pro rata or by lot or
by any other method utilized by the Trustee; provided, that if at the time
of redemption the Debentures are registered as a Global Debenture, the
Depositary shall determine, in accordance with its procedures, the
principal amount of such Debentures held by each holder of Debentures to be
redeemed.
(b) The Redemption Price, in the case of a redemption under
Section 3.1(a)(i) above, shall equal the following prices, expressed in
percentages of the principal amount of the Debentures, if the Debentures
are redeemed during the 12-month period beginning February 1 of the years
indicated below:
REDEMPTION
YEAR PRICE
2007 104.192%
2008 103.772%
2009 103.353%
2010 102.934%
2011 102.515%
2012 102.096%
2013 101.677%
2014 101.257%
2015 100.838%
2016 100.419%
and at 100% on or after February 1, 2017.
The Redemption Price, in the case of a redemption prior to
February 1, 2007 following a Tax Event, as described under Section
3.1(a)(ii) above, shall equal a "Make-Whole Amount" equal to the greater of
(i) 100% of the principal amount of the Debentures or (ii) as determined by
a Quotation Agent (as defined below), the sum of the present values of (A)
the principal amount and premium payable as part of the Redemption Price
with respect to an optional redemption of such Debentures on February 1,
2007, and (B) scheduled payments of interest from the Redemption Date to
February 1, 2007 (the "Remaining Life"), in each case discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting
of 30-day months) at the Adjusted Treasury Rate (as defined below).
"Adjusted Treasury Rate" means, with respect to any Redemption
Date, the Treasury Rate (as defined below) plus (i) 1.50% if such
Redemption Date occurs on or before February 1, 1998 or (ii) 0.50% if such
Redemption Date occurs after February 1, 1998.
"Treasury Rate" means (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the
most recently published statistical release designated "H.15(519)" or any
successor publication which is published weekly by the Federal Reserve and
which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the Remaining Life
(if no maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding to the
Remaining Life shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (ii) 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 semi-annual
equivalent yield to maturity of the Comparable Treasury Issue (as defined
below), calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be
calculated on the third Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means, with respect to any Redemption
Date, the United States Treasury security selected by the Quotation Agent
as having a maturity comparable to the Remaining Life 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 Life. If no United States Treasury
security has a maturity which is within a period from three months before
to three months after February 1, 2007, the two most closely corresponding
United States Treasury securities shall be used as the Comparable Treasury
Issue, and the Treasury Rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such securities.
"Quotation Agent" means Xxxxxxx Xxxxx Government Securities, Inc.
and its successors; provided, however, that if the foregoing shall cease to
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be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Trustee after
consultation with the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day preceding such Redemption Date, as set
forth in the most recent weekly statistical release (or any successor
release) published by the Federal Reserve and designated "H.15(519)" or
(ii) if such release (or any successor release) is not published or does
not contain such prices during the week preceding such Business Day, (A)
the average of five Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than three
such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third Business Day preceding such
Redemption Date.
(c) For so long as the Trust is the Holder of all Outstanding
Debentures, the proceeds of any redemption provided for in this Section 3.1
shall be used by the Trust to redeem Capital Securities in accordance with
their terms.
SECTION 3.2 No Sinking Fund.
The Subordinated Debentures are not entitled to the benefit of
any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
The Company shall have the right, at any time and from time to time
during the term of the Debentures, to defer payments of interest by
extending the interest payment period of such Debentures for a period not
exceeding 10 consecutive semi-annual interest payment periods (the
"Extended Interest Payment Period"), during which Extended Interest Payment
Period no interest shall be due and payable; provided that no Extended
Interest Payment Period may extend beyond the Maturity Date. To the extent
permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant
to this Section 4.1, will bear interest thereon at the Coupon Rate
compounded quarterly for each semi-annual interest payment period of the
Extended Interest Payment Period ("Compounded Interest"). At the end of the
Extended Interest Payment Period, the Company shall pay all interest
accrued and unpaid on the Debentures, including any Additional Interest and
Compounded Interest (together, "Deferred Interest") that shall be payable
to the holders of the Debentures in whose names the Debentures are
registered in the Security Register on the first record date after the end
of the Extended Interest Payment Period. Before the termination of any
Extended Interest Payment Period, the Company may further extend such
period, provided that such period together with all such further extensions
thereof shall not exceed 10 consecutive semi-annual interest payment
periods or extend beyond the maturity date of the Debentures. Upon the
termination of any Extended Interest Payment Period and upon the payment of
all Deferred Interest then due, the Company may commence a new Extended
Interest Payment Period, subject to the foregoing requirements. No interest
shall be due and payable during an Extended Interest Payment Period, except
at the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest Payment Period.
SECTION 4.2 Notice of Extension.
(a) If the Institutional Trustee is the only registered holder
of the Debentures at the time the Company elects an Extended Interest
Payment Period, the Company shall give written notice to the Trustee, the
Administrative Trustees, and the Institutional Trustee of its election of
such Extended Interest Payment Period at least one Business Day before the
earlier of (i) the next succeeding date on which Distributions on the Trust
Securities issued by the Trust are payable, or (ii) the date the Trust is
required to give notice of the record date, or the date such Distributions
are payable, to any applicable self-regulatory organization or to holders
of the Capital Securities, but in any event at least one Business Day
before such record date.
(b) If the Institutional Trustee is not the only holder of the
Debentures at the time the Company elects an Extended Interest Payment
Period, the Company shall give the holders of the Debentures and the
Trustee written notice of its election of such Extended Interest Payment
Period at least 10 Business Days before the earlier of (i) the next
succeeding Interest Payment Date, or (ii) the date the Company is required
to give notice of the record or payment date of such interest payment to
any applicable self-regulatory organization or to holders of the
Debentures.
(c) The semi-annual interest payment period in which any notice
is given pursuant to paragraphs (a) or (b) of this Section 4.2 shall be
counted as one of the 10 semi-annual interest payment periods permitted in
the maximum Extended Interest Payment Period permitted under Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses.
(a) In connection with the offering, sale and issuance of the
Debentures to the Institutional Trustee and in connection with the sale of
the Trust Securities by the Trust, the Company, in its capacity as borrower
with respect to the Debentures, shall:
(1) pay all costs and expenses relating to the offering,
sale and issuance of the Debentures, including commissions to the
underwriters payable pursuant to the Underwriting Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 7.6 of the Indenture;
(2) pay all costs and expenses of the Trust (including, but
not limited to, costs and expenses relating to the organization of the
Trust, the offering, sale and issuance of the Trust Securities (including
commissions to the underwriters in connection therewith), the fees and
expenses of the Institutional Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing,
and disposition of Trust assets); and
(3) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the Trust.
(b) The obligations of the Company under paragraphs (a)(2) and
(a)(3) of this Section 5.1 are for the benefit of, and shall be enforceable
by, any person to whom any such liabilities, costs, expenses, and taxes are
owed (a "Creditor"), whether or not such Creditor has received notice
thereof. Any such Creditor may enforce such obligations of the Company
directly against the Company, and the Company irrevocably waives any right
or remedy to require that any such Creditor take any action against the
Trust or any other person before proceeding against the Company. The
Company shall execute such additional agreements as may be necessary or
desirable to give full effect to the provisions of this Section 5.1(b).
SECTION 5.2 Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee pursuant to Section
7.10 of the Indenture, the Company shall pay to the Trustee all amounts
accrued and owing to the Trustee to the date of such termination, removal
or resignation. Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Institutional Trustee, as the
case may be, pursuant to Section 5.7 of the Declaration, the Company shall
pay to the Delaware Trustee or Institutional Trustee, as applicable, all
amounts accrued and owing to such Trustee to the date of such termination,
removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1 Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE Debenture IS TO BE A GLOBAL Debenture, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and no
transfer of this Debenture (other than a transfer of this Debenture 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) may
be registered except in limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx) to the issuer or its agent for registration of transfer, exchange
or payment, and any Debenture issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & CO., has an interest
herein.]
No.
XXXXX INDUSTRIES, INC.
9.50% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 2027
Xxxxx Industries, Inc., an Indiana corporation (the "Company",
which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
______________, or registered assigns, the principal sum of $103,100,000 on
February 1, 2027, and to pay interest on said principal sum from January
28, 1997, or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided
for, semi-annually (subject to deferral as set forth herein) in arrears on
February 1 and August 1 of each year commencing August 1, 1997, at the rate
of 9.50% per annum until the principal hereof shall have become due and
payable, plus Additional Interest, if any, and on any overdue principal and
premium, if any, and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded semiannually.
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount
of interest payable for any period shorter than a full semi-annual interest
payment period for which interest is computed will be computed on the basis
of actual number of days elapsed in a 360-day year of twelve 30-day months.
In the event that any date on which interest is payable on this Debenture
is not a Business Day, then payment of interest payable on such date will
be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with
the same force and effect as if made on such date. The interest installment
so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the person in
whose name this Debenture (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the close
of business on the business day next preceding such Interest Payment Date.
[IF THE CAPITAL SECURITIES ARE NO LONGER REPRESENTED BY A GLOBAL
CERTIFICATE OR IF THE DEBENTURES ARE NOT HELD BY THE INSTITUTIONAL TRUSTEE
AND ARE NOT REPRESENTED BY A GLOBAL DEBENTURE -- which shall be the close
of business on [insert regular record date selected by the Company in
accordance with Section 2.5].] Any such interest installment not punctually
paid or duly provided for shall forthwith cease to be payable to the
registered holders on such regular record date and may be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities)
is registered at the close of business on a special record date to be fixed
by the Trustee for the payment of such defaulted interest, notice of which
shall be given to the registered holders of this series of Debentures not
less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Debentures may be listed, and upon
such notice as may be required by such exchange, all as more fully provided
in the Indenture. The principal of (and premium, if any) and the interest
on this Debenture shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public
and private debts; provided, however, that payment of interest may be made
at the option of the Company by check mailed to the registered holder at
such address as shall appear in the Security Register or by wire transfer
to an account appropriately designated by such holder. Notwithstanding the
foregoing, so long as the holder of this Debenture is the Institutional
Trustee, the payment of the principal of (and premium, if any) and interest
on this Debenture will be made at such place and to such account as may be
designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to
the prior payment in full of all Senior Indebtedness of the Company, and
this Debenture is issued subject to the provisions of the Indenture with
respect thereto. Each holder of this Debenture, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided, and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Indebtedness
of the Company, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been
signed by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the
same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated
XXXXX INDUSTRIES, INC.
By:
Name:
Title:
Attest:
By:
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY or
as Trustee as Authenticating Agent
By By
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures
of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture, all issued or to be issued in one or more
series under and pursuant to an Indenture dated as of January 28, 1997,
duly executed and delivered between the Company and Wilmington Trust
Company, as Trustee (the "Trustee"), as supplemented by the First
Supplemented Indenture dated as of January 28, 1997, between the Company
and the Trustee (the Indenture as so supplemented, the "Indenture"), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the
holders of the Debentures. By the terms of the Indenture, the Debentures
are issuable in series that may vary as to amount, date of maturity, rate
of interest and in other respects as provided in the Indenture. This series
of Debentures is limited in aggregate principal amount as specified in said
First Supplemental Indenture.
Subject to the provisions of Article III of the Indenture, the
Company has the right to redeem this Debenture (i) on or after February 1,
2007, in whole at any time or in part from time to time, or (ii) in the
event that a Tax Event (as defined in the First Supplemental Indenture)
shall occur and be continuing, then prior to February 1, 2007, in whole
(but not in part) within 90 days following the occurrence of such Tax Event
upon not less than 30 nor more than 60 days' prior written notice, at the
redemption price specified below (the "Redemption Price"), plus any accrued
and unpaid interest, including Additional Interest, if any, thereon to the
date of such redemption (the "Redemption Date"); provided, however, that
the
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Company shall not redeem the Debentures in part unless all accrued but
unpaid interest has been paid in full on all of the Debentures for all semi-
annual interest payment periods terminating on or prior to the Redemption
Date.
The Redemption Price, in the case of a redemption under (i)
above, shall equal the following prices, expressed in percentages of the
principal amount of the Debentures, if the Debentures are redeemed during
the 12-month period beginning February 1 of the years indicated below:
REDEMPTION
YEAR PRICE
2007 104.192%
2008 103.772%
2009 103.353%
2010 102.934%
2011 102.515%
2012 102.096%
2013 101.677%
2014 101.257%
2015 100.838%
2016 100.419%
and at 100% on or after February 1, 2017.
The Redemption Price, in the case of a redemption prior to
February 1, 2007 following a Tax Event, as described under (ii) above,
shall equal a Make-Whole Amount, equal to the greater of (i) 100% of the
principal amount of the Debentures or (ii) as determined by a Quotation
Agent (as defined below), the sum of the present values of (A) the
principal amount and premium payable as part of the Redemption Price with
respect to an optional redemption of such Debentures on February 1, 2007,
and (B) the scheduled payments of interest from the Redemption Date to
February 1, 2007 (the "Remaining Life"), in each case discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting
of 30-day months) at the Adjusted Treasury Rate (as defined below).
"Adjusted Treasury Rate" means, with respect to any Redemption
Date, the Treasury Rate (as defined below) plus (i) 1.50% if such
Redemption Date occurs on or before February 1, 1998 or (ii) 0.50% if such
Redemption Date occurs after February 1, 1998.
"Treasury Rate" mean (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the
most recently published statistical release designated "H.15(519)" or any
successor publication which is published weekly by the Federal Reserve and
which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the Remaining Life
(if no maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding to the
Remaining Life shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (ii) 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 semi-annual
equivalent yield to maturity of the Comparable Treasury Issue (as defined
below), calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be
calculated on the third Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means, with respect to any Redemption
Date, the United States Treasury security selected by the Quotation Agent
as having a maturity comparable to the Remaining Life 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 Life. If no United States Treasury
security has a maturity which is within a period from three months before
to three months after February 1, 2007, the two most closely corresponding
United States Treasury securities shall be used as the Comparable Treasury
Issue, and the Treasury Rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such securities.
"Quotation Agent" means Xxxxxxx Xxxxx Government Securities, Inc.
and its successors; provided, however, that if the foregoing shall cease to
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be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Trustee after
consultation with the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day preceding such Redemption Date, as set
forth in the most recent weekly statistical release (or any successor
release) published by the Federal Reserve and designated "H.15(519)" or
(ii) if such release (or any successor release) is not published or does
not contain such prices during the week preceding such Business Day, (A)
the average of five Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than three
such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third Business Day preceding such
Redemption Date.
If the Debentures are only partially redeemed by the Company, the
Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; provided that if, at the time of redemption, the
Debentures are registered as a Global Debenture, the Depositary shall
determine the principal amount of such Debentures held by each holder to be
redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof
will be issued in the name of the holder hereof upon the cancellation
hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures may
be declared, and upon such declaration shall become immediately due and
payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time Outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
holders of the Debentures; provided, however, that no such supplemental
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indenture shall (i) extend the fixed maturity of any Debentures of any
series, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the holder of
each Debenture so affected, or (ii) reduce the aforesaid percentage of
Debentures, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of each
Debenture then Outstanding and affected thereby. The Indenture also
contains provisions permitting the holders of a majority in aggregate
principal amount of the Debentures of any series at the time outstanding
affected thereby, on behalf of all of the holders of the Debentures of such
series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a
default in the payment of the principal of or premium, if any, or interest
on any of the Debentures of such series. Any such consent or waiver by the
registered holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and
at the rate and in the money herein prescribed.
The Company shall have the right at any time during the term of
the Debentures and from time to time to extend the interest payment period
of such Debentures for up to 10 consecutive semi-annual interest payment
periods (an "Extended Interest Payment Period"), at the end of which period
the Company shall pay all interest then accrued and unpaid (together with
interest thereon at the rate specified for the Debentures to the extent
that payment of such interest is enforceable under applicable law);
provided that no Extended Interest Payment Date may extend beyond the
maturity date of the Debentures. Before the termination of any such
Extended Interest Payment Period, the Company may further extend such
Extended Interest Payment Period, provided that such Extended Interest
Payment Period together with all such further extensions thereof shall not
exceed 10 consecutive semi-annual interest payment periods. At the
termination of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid interest and any additional amounts then
due, the Company may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the Corporate Trust Office of the
Trustee or such other location designated by the Company pursuant to the
Indenture accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company or the Trustee duly executed by the
registered holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for
the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for
any such transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of
or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Security Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
[The Debentures of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof.] [This Global Debenture is exchangeable for Debentures in
definitive form only under certain limited circumstances set forth in the
Indenture. Debentures of this series so issued are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof.] As provided in the Indenture and subject to certain
limitations herein and therein set forth, Debentures of this series so
issued are exchangeable for a like aggregate principal amount of Debentures
of this series of a different authorized denomination, as requested by the
holder surrendering the same.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1 Original Issue of Debentures.
Debentures in the aggregate principal amount of $103,100,000 may,
upon execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Debentures to or upon the
written order of the Company, signed by its President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner
and to the extent herein and therein provided.
SECTION 8.2 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
SECTION 8.3 Governing Law.
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New
York, and for all purposes shall be construed in accordance with the laws
of said State.
SECTION 8.4 Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
this First Supplemental Indenture or of the Debentures, but this First
Supplemental Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 8.5 Counterparts.
This First Supplemental Indenture may be executed in any number
of counterparts each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed on the date or dates indicated
in the acknowledgments and as of the day and year first above written.
XXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President-Finance and
Chief Financial Officer
WILMINGTON TRUST COMPANY
not in its individual capacity
but solely as Trustee
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
STATE OF INDIANA )
) SS:
COUNTY OF Xxxxxxxxxxx )
On the 28th day of January, 1997, before me personally came
Xxxxxxx X. Xxxxx to me known, who, being by me duly sworn, did depose and
say that he is the Vice President-Finance and Chief Financial Officer of
XXXXX INDUSTRIES, INC., one of the corporations described in and which
executed the above instrument, and that he signed his name thereto by
authority of the Board of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this 28th day of January, 1997.
/s/ Xxxxx X. Xxxxxxx
Notary Public Xxxxx X. Xxxxxxx
My commission expires 4/28/99
STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
On the 28th day of January, 1997, before me personally came
Xxxxx X. Xxxxxx to me known, who, being by me duly sworn, did
depose and say he is Vice President of WILMINGTON TRUST
COMPANY, one of the corporations described in and which executed the above
instrument, and that he signed his name thereto by authority of the Board
of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this 28th day of January, 1997.
/s/ Xxxx X. Xxxxxxxx
----------------------------
Notary Public
OFFICIAL SEAL
XXXX X. XXXXXXXX
NOTARY PUBLIC STATE OF ILLINOIS
MY COMMISSION EXP. AUG. 5, 1997
