EXECUTION VERSION
THE BLACK & XXXXXX CORPORATION
AND
THE BANK OF NEW YORK,
AS TRUSTEE
4 3/4% Senior Notes Due 2014
INDENTURE
Dated as of October 18, 2004
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions......................................................1
SECTION 1.2 Other Definitions................................................5
SECTION 1.3 Incorporation by Reference of Trust Indenture Act................6
SECTION 1.4 Rules of Construction............................................6
ARTICLE II THE SECURITIES
SECTION 2.1 Form, Dating and Terms...........................................7
SECTION 2.2 Execution and Authentication....................................13
SECTION 2.3 Registrar and Paying Agent......................................14
SECTION 2.4 Paying Agent To Hold Money in Trust.............................15
SECTION 2.5 Securityholder Lists............................................15
SECTION 2.6 Transfer and Exchange...........................................15
SECTION 2.7 Form of Certificate to be Delivered in Connection with Transfers
to Institutional Accredited Investors........................18
SECTION 2.8 Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S.....................................20
SECTION 2.9 Mutilated, Destroyed, Lost or Stolen Securities.................21
SECTION 2.10 Outstanding Securities..........................................22
SECTION 2.11 Temporary Securities............................................22
SECTION 2.12 Cancellation....................................................23
SECTION 2.13 Payment of Interest; Defaulted Interest.........................23
SECTION 2.14 Computation of Interest.........................................24
SECTION 2.15 XXXXX and ISIN Numbers..........................................24
ARTICLE III COVENANTS
SECTION 3.1 Payment of Securities...........................................24
SECTION 3.2 Limitation on Liens.............................................25
SECTION 3.3 Limitation on Sale Leaseback Transactions.......................26
SECTION 3.4 Maintenance of Office or Agency.................................26
SECTION 3.5 Compliance Certificate..........................................26
SECTION 3.6 Statement by Officers as to Default.............................27
SECTION 3.7 Further Instruments and Acts....................................27
ARTICLE IV SUCCESSOR COMPANY
SECTION 4.1 Merger, Consolidation or Sale of All or Substantially All Assets
of the Company...............................................27
ARTICLE V REDEMPTION OF SECURITIES
SECTION 5.1 Optional Redemption.............................................27
SECTION 5.2 Applicability of Article........................................28
SECTION 5.3 Election to Redeem; Notice to Trustee...........................28
SECTION 5.4 Selection by Trustee of Securities to Be Redeemed...............28
SECTION 5.5 Notice of Redemption............................................28
SECTION 5.6 Deposit of Redemption Price.....................................29
SECTION 5.7 Securities Payable on Redemption Date...........................29
SECTION 5.8 Securities Redeemed in Part.....................................30
ARTICLE VI DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default...............................................30
SECTION 6.2 Acceleration....................................................31
SECTION 6.3 Other Remedies..................................................32
SECTION 6.4 Waiver of Past Defaults.........................................32
SECTION 6.5 Control by Majority.............................................32
SECTION 6.6 Limitation on Suits.............................................32
SECTION 6.7 Rights of Holders to Receive Payment............................33
SECTION 6.8 Collection Suit by Trustee......................................33
SECTION 6.9 Trustee May File Proofs of Claim................................33
SECTION 6.10 Priorities......................................................33
SECTION 6.11 Undertaking for Costs...........................................34
ARTICLE VII TRUSTEE
SECTION 7.1 Duties of Trustee...............................................34
SECTION 7.2 Rights of Trustee...............................................36
SECTION 7.3 Individual Rights of Trustee....................................37
SECTION 7.4 Trustee's Disclaimer............................................37
SECTION 7.5 Notice of Defaults..............................................37
SECTION 7.6 Reports by Trustee to Holders...................................37
SECTION 7.7 Compensation and Indemnity......................................37
SECTION 7.8 Replacement of Trustee..........................................38
SECTION 7.9 Successor Trustee by Merger.....................................39
SECTION 7.10 Eligibility; Disqualification...................................39
SECTION 7.11 Preferential Collection of Claims Against Company...............40
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance........40
SECTION 8.2 Legal Defeasance and Discharge..................................40
SECTION 8.3 Covenant Defeasance.............................................40
SECTION 8.4 Conditions to Legal or Covenant Defeasance......................41
SECTION 8.5 Satisfaction and Discharge of Indenture.........................42
SECTION 8.6 Survival of Certain Obligations.................................43
SECTION 8.7 Acknowledgement of Discharge by Trustee.........................43
SECTION 8.8 Application of Trust Moneys.....................................43
SECTION 8.9 Repayment to the Company; Unclaimed Money.......................43
SECTION 8.10 Reinstatement...................................................44
ARTICLE IX AMENDMENTS
SECTION 9.1 Without Consent of Holders......................................44
SECTION 9.2 With Consent of Holders.........................................44
SECTION 9.3 Compliance with Trust Indenture Act.............................45
SECTION 9.4 Revocation and Effect of Consents and Waivers...................45
SECTION 9.5 Notation on or Exchange of Securities...........................46
SECTION 9.6 Trustee To Sign Amendments......................................46
ARTICLE X MISCELLANEOUS
SECTION 10.1 Trust Indenture Act Controls....................................46
SECTION 10.2 Notices.........................................................46
SECTION 10.3 Communication by Holders with other Holders.....................47
SECTION 10.4 Certificate and Opinion as to Conditions Precedent..............47
SECTION 10.5 Statements Required in Certificate or Opinion...................48
SECTION 10.6 When Securities Disregarded.....................................48
SECTION 10.7 Rules by Trustee, Paying Agent and Registrar....................48
SECTION 10.8 Legal Holidays..................................................48
SECTION 10.9 Governing Law; Waiver of Jury Trial.............................49
SECTION 10.10 No Recourse Against Others......................................49
SECTION 10.11 Successors......................................................49
SECTION 10.12 Multiple Originals..............................................49
SECTION 10.13 Variable Provisions.............................................49
SECTION 10.14 Table of Contents; Headings.....................................49
SECTION 10.15 Force Majeure...................................................49
EXHIBIT A Form of the Initial Security and Additional Security
EXHIBIT B Form of the Exchange Security
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) .................................... 7.10
(a)(2) .................................... 7.10
(a)(3) .................................... N.A.
(a)(4) .................................... N.A.
(b) .................................... 7.8; 7.10
(c) .................................... N.A.
311(a) .................................... 7.11
(b) .................................... 7.11
(c) .................................... N.A.
312(a) .................................... 2.5
(b) .................................... 10.3
(c) .................................... 10.3
313(a) .................................... 7.6
(b)(1) .................................... N.A.
(b)(2) .................................... 7.6
(c) .................................... 7.6
(d) .................................... 7.6
314(a) .................................... 3.5; 10.2; 10.5
(b) .................................... N.A.
(c)(1) .................................... 10.4
(c)(2) .................................... 10.4
(c)(3) .................................... N.A.
(d) .................................... N.A.
(e) .................................... 10.5
315(a) .................................... 7.1
(b) .................................... 7.5; 10.2
(c) .................................... 7.1
(d) .................................... 7.1
(e) .................................... 6.11
316(a)(last sentence) .................................... 10.6
(a)(1)(A) .................................... 6.5
(a)(1)(B) .................................... 6.4
(a)(2) .................................... N.A.
(b) .................................... 6.7
317(a)(1) .................................... 6.8
(a)(2) .................................... 6.9
(b) .................................... 2.4
318(a) .................................... 10.1
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
INDENTURE, dated as of October 18, 2004, between THE BLACK & XXXXXX
CORPORATION, a Maryland corporation, and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee.
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of (i) the Company's 4 3/4% Senior
Notes Due 2014 issued on the date hereof (the "Initial Securities"), (ii) if and
when issued, additional 4 3/4% Senior Notes Due 2014 that may be offered from
time to time subsequent to the Issue Date (the "Additional Securities"), and
(iii) if and when issued pursuant to a Registered Exchange Offer from time to
time for Initial Securities or any Additional Securities as provided in an
Exchange and Registration Rights Agreement, the Company's 4 3/4% Senior Notes
Due 2014 (the "Exchange Securities").
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1 Definitions.
"Additional Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"Attributable Debt" for a lease means the carrying value of the capitalized
rental obligation determined under generally accepted accounting principles
whether or not such obligation is required to be shown on the balance sheet as a
long-term liability. The carrying value may be reduced by the capitalized value
of the rental obligations, calculated on the same basis, that any sublessee has
for all or part of the same property.
"Board of Directors" means, as to any Person, the board of directors of
such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a resolution of the
Board of Directors or of a committee or person to which or to whom the Board of
Directors has properly delegated the appropriate authority, a copy of which has
been certified by the Secretary or an Assistant Secretary of the Person to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification and delivered to the Trustee.
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banking institutions are authorized or required by law to close
in New York City.
"Company" means The Black & Xxxxxx Corporation or its successor.
"Consolidated Net Tangible Assets" means total assets less (1) total
current liabilities (excluding any Debt which, at the option of the borrower, is
renewable or extendible to a term exceeding 12 months and which is included in
current liabilities and further excluding any deferred income taxes which are
included in current liabilities) and (2) goodwill, patents,
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trademarks and other like intangibles, all as stated on the Company's most
recent quarter-end consolidated balance sheet preceding the date of
determination.
"Debt" means any debt for borrowed money (including the Securities),
capitalized lease obligations and purchase money obligations, or any guarantee
of such debt, in any such case that would appear on the consolidated balance
sheet of the Company as a liability.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Definitive Securities" means certificated Securities.
"DTC" means The Depository Trust Company, its nominees and their respective
successors and assigns, or such other depository institution hereinafter
appointed by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange and Registration Rights Agreement" means (i) the Exchange and
Registration Rights Agreement dated the Issue Date among the initial purchasers
named therein and the Company, as the same may be amended, supplemented or
modified from time to time and (ii) any similar exchange and/or registration
rights agreement entered into with respect to any Additional Securities, as any
such agreement may be amended, supplemented or modified from time to time.
"Exchange Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"Exempted Debt" means the sum, without duplication, of the following items
outstanding as of the date Exempted Date is being determined: (i) Debt incurred
after the date of the Indenture and secured by liens created or assumed or
permitted to exist pursuant to paragraph (b) of Section 3.2 and (ii)
Attributable Debt of the Company and its Subsidiaries in respect of all sale and
lease-back transactions with regard to any Principal Property entered into
pursuant to paragraph (b) of Section 3.3.
"Fiscal Year" means the fiscal year of the Company.
"Funded Debt" means all Debt having a maturity of more than one year from
the date of its creation or having a maturity of less than one year but by its
terms being renewable or extendible, at the option of the obligor in respect
thereof, beyond one year from its creation.
"Holder" or "Securityholder" means the Person in whose name a Security is
registered in the Note Register.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Initial Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
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"Issue Date" means the date on which the Initial Securities are originally
issued.
"Legal Holiday" has the meaning ascribed to it in Section 10.8.
"Non-U.S. Person" means a person who is not a U.S. person, as defined in
Regulation S.
"Note Register" has the meaning ascribed to it in Section 2.3.
"Officer" means the Chairman of the Board, any Vice Chairman of the Board,
the President, the Chief Financial Officer, any Senior Vice President, any Vice
President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and either an Assistant Treasurer or an Assistant Secretary of the
Company and delivered to the Trustee. An Officers' Certificate given pursuant to
Section 3.5 shall be signed by any of the principal executive officer, the
principal financial officer or the principal accounting officer of the Company
and any other Officer.
"Opinion of Counsel" means a written opinion (subject to customary
assumptions, qualifications and exceptions) from legal counsel that is
reasonably acceptable to the Trustee. Unless otherwise required by the TIA, the
counsel may be an employee of or counsel to the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"principal" of any Debt (including the Securities) means the principal
amount of such Debt plus the premium, if any, on such Debt.
"Principal Property" means land, land improvements, buildings and
associated factory and laboratory equipment owned or leased pursuant to a
capital lease and used by the Company or any Subsidiary primarily for
manufacturing, assembling, processing, producing, packaging or storing its
products, raw materials, inventories or other materials and supplies located in
the United States and having an acquisition cost plus capitalized improvements
in excess of 2% of Consolidated Net Tangible Assets as of the date of
determination, but shall not include any such property financed through the
issuance of tax exempt governmental obligations, or any such property that has
been determined by Board Resolution of the Company not to be of material
importance to the respective businesses conducted by the Company and its
Subsidiaries taken as a whole, effective as of the date such resolution is
adopted.
"QIB" means any "qualified institutional buyer" (as defined in Rule 144A).
"Redemption Date" means, with respect to any redemption of Securities, the
date of redemption with respect thereto.
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"Registered Exchange Offer" means the offer which may be made by the
Company pursuant to an Exchange and Registration Rights Agreement to exchange
Initial Securities or Additional Securities for Exchange Securities.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Period" means the 40 consecutive days beginning on and
including the later of (1) the day on which the Initial Securities are offered
to Persons other than distributors (as defined in Regulation S under the
Securities Act) and (2) the Issue Date.
"Restricted Securities Legend" means the Private Placement Legend set forth
in clause (i) of Section 2.1(c) or the Regulation S Legend set forth in clause
(ii) of Section 2.1(c), as applicable.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities" means the collective reference to the Initial Securities,
Additional Securities, and Exchange Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to the Global
Security (as appointed by DTC), or any successor Person thereto and shall
initially be the Trustee.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision, but shall not include any contingent obligations to repay, redeem or
repurchase any such principal prior to the date originally scheduled for the
payment thereof.
"Subsidiary" means any corporation, limited liability company or other
business entity of which more than 50% of the total voting power of the equity
interests entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof or any partnership of
which more than 50% of the partners' equity interests (considering all partners'
equity interests as a single class) is, in each case, at the time owned or
controlled, directly or indirectly, by the Company, one or more of the
Subsidiaries of the Company, or combination thereof.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939 (15
U.S.C. xx.xx. 77aaa-77bbbb), as in effect on the date of this Indenture except
as provided in Section 9.3.
"Trustee" means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor.
"Trust Officer" shall mean, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice
5
president, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, 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.
"U.S. GAAP" means generally accepted accounting principles in the United
States as have been approved by a significant segment of the United States
accounting profession, which are in effect at the time of each application for
purposes of determining compliance with Article III and Article IV. For the
purposes of this Indenture, the term "consolidated" with respect to any Person
shall mean such Person consolidated with its Subsidiaries.
"U.S. Government Securities" means securities that are (a) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Securities or a specific payment of principal of or interest on any
such U.S. Government Securities held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Securities or the specific payment
of principal of or interest on the U.S. Government Securities evidenced by such
depository receipt.
SECTION 1.2 Other Definitions.
Defined in
Term Section
---- ----------
"Agent Members" 2.1(d)
"Authenticating Agent" 2.2
"Bankruptcy Law" 6.1
"Company Order" 2.2
"Corporate Trust Office" 3.4
"Covenant Defeasance" 8.3
"Custodian" 6.1
"Defaulted Interest" 2.13
"Event of Default" 6.1
"Exchange Global Note" 2.1(a)
"Global Securities" 2.1(a)
"IAI" 2.1(a)
"Institutional Accredited Investor Global Note" 2.1(a)
"Legal Defeasance" 8.2
"Note Register" 2.3
6
"Notice of Default" 6.1
"Paying Agent" 2.3
"Private Placement Legend" 2.1(c)
"Registrar" 2.3
"Regulation S Global Note" 2.1(a)
"Regulation S Legend" 2.1(c)
"Resale Restriction Termination Date" 2.6
"Rule 144A Global Note" 2.1(a)
"Special Interest Payment Date" 2.13
"Special Record Date" 2.13
"Successor Company" 4.1
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.4 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with U.S. GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
7
(e) words in the singular include the plural and words in the
plural include the singular; and
(f) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared in
accordance with U.S. GAAP.
ARTICLE II
The Securities
Section 2.1 Form, Dating and Terms.
(a) The Initial Securities and the Additional Securities shall be in
substantially the form set forth in Exhibit A hereto, which is hereby
incorporated by reference and made a part of this Indenture, and the Exchange
Securities shall be in substantially the form set forth in Exhibit B hereto,
which is hereby incorporated by reference and made a part of this Indenture.
Initial Securities and Additional Securities offered, sold, and resold to
QIBs in the United States of America in reliance on Rule 144A will be issued
initially in the form of a permanent global Security, including appropriate
legends as set forth in Section 2.1(c) below (each, a "Rule 144A Global Note"),
deposited with the Trustee, as custodian for DTC, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. A Rule 144A Global
Note may be represented by more than one certificate, if so required by DTC's
rules regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of a Rule 144A Global Note may from
time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for DTC or its nominee, as hereinafter provided.
Initial Securities and Additional Securities offered, sold and resold
outside the United States of America to Non-U.S. Persons in reliance on
Regulation S will be issued initially in the form of a permanent global
Security, including appropriate legends as set forth in Section 2.1(c) below
(each, a "Regulation S Global Note"), deposited with the Trustee, as custodian
for DTC, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. A Regulation S Global Note may be represented by more than
one certificate, if so required by DTC's rules regarding the maximum principal
amount to be represented by a single certificate. The aggregate principal amount
of a Regulation S Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Initial Securities or Additional Securities resold after an initial resale
thereof to QIBs in reliance on Rule 144A or an initial resale thereof in
reliance on Regulation S to institutional "accredited investors" (as defined in
Rules 501(a)(1), (2), (3) or (7) under the Securities Act) who are not QIBs
(each, an "IAI") in the United States of America in accordance with the
procedure described herein will be initially issued in the form of a permanent
global Security (each, an "Institutional Accredited Investor Global Note")
deposited with the Trustee, as
8
custodian for DTC, duly executed by the Company and authenticated by the Trustee
as hereinafter provided. An Institutional Accredited Investor Global Note may be
represented by more than one certificate, if so required by DTC's rules
regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of an Institutional Accredited
Investor Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Exchange Securities exchanged for interests in a Rule 144A Global Note, a
Regulation S Global Note or an Institutional Accredited Investor Note will be
issued initially in the form of a permanent global Security, deposited with the
Trustee as hereinafter provided, including the appropriate legend set forth in
Section 2.1(c) below (each, an "Exchange Global Note"). An Exchange Global Note
may be represented by more than one certificate, if so required by DTC's rules
regarding the maximum principal amount to be represented by a single
certificate.
The Rule 144A Global Notes, the Regulation S Global Notes, the
Institutional Investor Global Notes and the Exchange Global Notes are sometimes
collectively herein referred to as the "Global Securities."
Except as described in the succeeding two sentences, the principal of and
interest on the Securities shall be payable at the office or agency of the
Company maintained for such purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose pursuant
to Section 2.3; provided, however, that, at the option of the Company, each
installment of interest may be paid by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Note Register. Payments
in respect of Securities represented by a Global Security (including principal
and interest) will be made by wire transfer of immediately available funds to
the accounts specified by DTC. Payments in respect of Securities represented by
Definitive Securities (including principal and interest) held by a Holder of at
least $1,000,000 aggregate principal amount of Securities represented by
Definitive Securities 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 15 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
The Securities may have notations, legends or endorsements required by law,
stock exchange rule or usage, in addition to those set forth in Section 2.1(c)
below. The Company and the Trustee shall approve the forms of the Securities and
any notation, endorsement or legend on them. Each Security shall be dated the
date of its authentication. The terms of the Securities set forth in Exhibit A
and Exhibit B are part of the terms of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to be bound by such terms.
(b) Denominations. The Securities shall be issuable only in fully
registered form, without coupons, and only in denominations of $1,000 and any
integral multiple thereof.
9
(c) Restrictive 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) Each Rule 144A Global Note and Institutional Accredited
Investor Global Note shall bear the following legend (the "Private Placement
Legend") on the face thereof:
"THIS SECURITY 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 UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES, ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH 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 THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (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 UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT 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 UNDER THE SECURITIES
ACT, PROVIDED THAT PRIOR TO SUCH TRANSFER, THE TRANSFEROR FURNISHES TO THE
COMPANY AND THE TRUSTEE A CERTIFICATE CONTAINING CERTAIN REPRESENTATIONS
RELATING TO THE PROPOSED TRANSFER BEING EFFECTED PURSUANT TO AND IN
ACCORDANCE WITH REGULATION S (THE FORM OF WHICH CERTIFICATE CAN BE OBTAINED
FROM THE TRUSTEE), (E) INSIDE THE UNITED STATES, TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE
IN A MINIMUM PRINCIPAL AMOUNT OF $250,000, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW
10
TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT AND THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE COMPANY
AND THE TRUSTEE A CERTIFICATE CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE
FORM OF WHICH CERTIFICATE CAN BE OBTAINED FROM THE TRUSTEE), OR (F) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
(ii) Each Regulation S Global Note shall bear the following legend
(the "Regulation S Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT
PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT ("REGULATION S"), AND (2) BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH 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 THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (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 UNDER
THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT 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, PROVIDED THAT PRIOR TO SUCH
TRANSFER, THE TRANSFEROR FURNISHES TO THE COMPANY AND THE TRUSTEE A
CERTIFICATE CONTAINING CERTAIN REPRESENTATIONS RELATING TO THE PROPOSED
TRANSFER BEING EFFECTED PURSUANT TO AND IN ACCORDANCE WITH REGULATION S (THE
11
FORM OF WHICH CERTIFICATE CAN BE OBTAINED FROM THE TRUSTEE), (E) INSIDE THE
UNITED STATES, TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING
THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION INVOLVING A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT AND THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE COMPANY AND THE TRUSTEE A CERTIFICATE CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS SECURITY (THE FORM OF WHICH CERTIFICATE CAN BE OBTAINED FROM THE
TRUSTEE), OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND INCLUDING
THE LATER OF (A) THE DAY ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER
THAN DISTRIBUTORS (AS DEFINED IN REGULATION S) AND (B) THE DATE OF THE
CLOSING OF THE ORIGINAL OFFERING. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT."
(iii) The Global Securities shall bear the following legend on the
face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK,
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 IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS
12
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF."
(d) Book-Entry Provisions.
(i) This Section 2.1(d) shall apply only to Global Securities
deposited with the Trustee, as custodian for DTC.
(ii) Each Global Security initially shall (A) be registered in the
name of DTC or the nominee of DTC, (B) be delivered to the Trustee as
custodian for DTC and (C) bear legends as set forth in Section 2.1(c).
(iii) Members of, or participants in, DTC ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held
on their behalf by DTC or by the Trustee as the custodian of DTC or under
such Global Security, and DTC 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 DTC or impair, as between DTC and its Agent
Members, the operation of customary practices of DTC governing the exercise
of the rights of a Holder of a beneficial interest in any Global Security.
(iv) In connection with any transfer of a portion of the beneficial
interest in a Global Security pursuant to paragraph (e) of this Section 2.1
to beneficial owners who are required to hold Definitive Securities, the
Securities Custodian shall reflect on its books and records the date and a
decrease in the principal amount of such Global Security in an amount equal
to the principal amount of the beneficial interest in the Global Security to
be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Definitive Securities of like tenor and
amount.
(v) In connection with the transfer of an entire Global Security
to beneficial owners pursuant to paragraph (e) of this Section 2.1, such
Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by DTC in
exchange for its beneficial interest in such Global Security, an equal
aggregate principal amount of Definitive Securities of authorized
denominations.
(vi) The registered Holder of a Global Security may grant proxies
and otherwise authorize any Person, including Agent Members and Persons that
may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
(e) Definitive Securities.
(i) Except as provided below, owners of beneficial interests in
Global Securities will not be entitled to receive Definitive Securities. If
required to do so
13
pursuant to any applicable law or regulation, beneficial owners may obtain
Definitive Securities in exchange for their beneficial interests in a Global
Security upon written request in accordance with DTC's and the Registrar's
procedures. In addition, Definitive Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global
Security if (A) DTC notifies the Company that it is unwilling or unable to
continue as depositary for such Global Security or DTC ceases to be a
clearing agency registered under the Exchange Act, at a time when DTC is
required to be so registered in order to act as depositary, and in each case
a successor depositary is not appointed by the Company within 90 days of such
notice, (B) the Company executes and delivers to the Trustee and Registrar an
Officers' Certificate stating that such Global Security shall be so
exchangeable or (C) an Event of Default has occurred and is continuing and
the Registrar has received a request from DTC.
(ii) Any Definitive Security delivered in exchange for an interest
in a Global Security pursuant to Section 2.1(c)(iv) or (v) shall, except as
otherwise provided by Section 2.6(c), bear the applicable legend regarding
transfer restrictions applicable to the Definitive Security set forth in
Section 2.1(c).
(iii) In connection with the exchange of a portion of a Definitive
Security for a beneficial interest in a Global Security, the Trustee shall
cancel such Definitive Security, and the Company shall execute, and the
Trustee shall authenticate and deliver, to the transferring Holder a new
Definitive Security representing the principal amount not so transferred.
SECTION 2.2 Execution and Authentication. One Officer shall sign the
Securities for the Company by manual or facsimile signature. If an Officer whose
signature is on a Security no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the Trustee
manually authenticates the Security. The signature of the Trustee on a Security
shall be conclusive evidence that such Security has been duly and validly
authenticated and issued under this Indenture. A Security shall be dated the
date of its authentication.
At any time and from time to time after the execution and delivery of this
Indenture, the Trustee shall authenticate and make available for delivery: (1)
Initial Securities for original issue on the Issue Date initially in an
aggregate principal amount of $300,000,000, (2) if and when issued, the
Additional Securities and (3) Exchange Securities for issue pursuant to an
Exchange and Registration Rights Agreement in exchange for Initial Securities or
Additional Securities of an equal principal amount, in each case upon a written
order of the Company signed by two Officers or by an Officer and either an
Assistant Treasurer or an Assistant Secretary of the Company (the "Company
Order"). Such Company Order shall specify the amount of the Securities to be
authenticated and the date on which the original issue of such Securities is to
be authenticated and whether the Securities are to be Initial Securities,
Additional Securities or Exchange Securities. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
limited to $300,000,000 principal amount of Initial Securities and such
additional principal amount of Additional Securities as may be authorized
14
from time to time by resolution adopted by the Company's Board of Directors,
except for Securities authenticated and delivered upon registration or transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 2.6,
Section 2.9, Section 2.11, Section 5.8, Section 9.5 and except for Exchange
Securities. All Securities issued on the Issue Date and all Additional
Securities shall be identical in all respects other than issue dates, the date
from which interest accrues and any changes relating thereto. Notwithstanding
anything to the contrary contained in this Indenture, the Holders of all
Securities issued under this Indenture shall vote and consent together on all
matters as one class, and the Holders of any Initial Securities, Additional
Securities or Exchange Securities will not have the right to vote or consent as
a separate class on any matter.
The Trustee may appoint an agent (the "Authenticating Agent") reasonably
acceptable to the Company to authenticate the Securities. Unless limited by the
terms of such appointment, any such Authenticating Agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by the Authenticating
Agent. An Authenticating Agent has the same rights as a Paying Agent to deal
with Holders or an Affiliate of the Company.
In case the Company, pursuant to Article IV, shall be consolidated or
merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the
Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article IV, any of the Securities authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Order of
the successor Person, shall authenticate and deliver Securities as specified in
such order for the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section 2.2 in exchange or substitution for or upon registration of
transfer of any Securities, such successor Person, at the option of the Holders
but without expense to them, shall provide for the exchange of all Securities at
the time outstanding for Securities authenticated and delivered in such new
name.
SECTION 2.3 Registrar and Paying Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange (the "Registrar") and an office or agency where Securities may
be presented for payment (the "Paying Agent"). The Company shall cause each of
the Registrar and the Paying Agent to maintain an office or agency in the
Borough of Manhattan, The City of New York. The Registrar shall keep a register
of the Securities and of their transfer and exchange (the "Note Register"). The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
15
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
promptly notify the Trustee in writing of the name and address of each such
agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.7. The Company or any of its Subsidiaries may act as
Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints DTC to act as depository with respect to the
Global Securities. The Trustee is authorized to enter into a letter of
representations with DTC in the form provided to the Trustee by the Company and
to act in accordance with such letter.
The Company initially appoints the Trustee as Registrar and Paying Agent
for the Securities.
SECTION 2.4 Paying Agent To Hold Money in Trust. By at least 10:00 a.m.
(New York City time) on the date on which any principal of or interest on any
Security is due and payable, the Company shall deposit with the Paying Agent a
sum sufficient to pay such principal or interest when due. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that such
Paying Agent shall hold in trust for the benefit of Securityholders or the
Trustee all money held by such Paying Agent for the payment of principal of or
interest on the Securities and shall promptly notify the Trustee in writing of
any default by the Company in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent (other than the Trustee) to pay all money held by it to
the Trustee and to account for any funds disbursed by such Paying Agent. Upon
complying with this Section 2.4, the Paying Agent (if other than the Company or
a Subsidiary) shall have no further liability for the money delivered to the
Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect
to the Company, the Trustee shall serve as Paying Agent for the Securities.
SECTION 2.5 Securityholder 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 Securityholders and shall otherwise comply with TIA
section 312(a). If the Trustee is not the Registrar, or to the extent otherwise
required under the TIA, the Company shall furnish to the Trustee, in writing 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
Securityholders and the Company shall otherwise comply with TIA section 312(a).
SECTION 2.6 Transfer and Exchange. (a) The following provisions shall apply
with respect to any proposed transfer of a beneficial interest in a Rule 144A
Global Note or in an Institutional Accredited Investor Global Note or any
Definitive Security issued in exchange therefor prior to the date which is two
years after the later of the date of its original issue and the last date on
which the Company or any Affiliate of the Company was the owner of such
Securities (or any predecessor thereto) (the "Resale Restriction Termination
Date"):
16
(i) a transfer thereof to a QIB in reliance on Rule 144A shall be
made upon the representation of the transferee in the form as set forth on
the reverse of the Security that it is purchasing for its own account or an
account with respect to which it exercises sole investment discretion and
that it and any such account is a QIB and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as the proposed transferee has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A;
(ii) a transfer thereof to an IAI shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set forth in
Section 2.7 from the proposed transferee and, if requested by the Company or
the Trustee, the delivery of an opinion of counsel, certification and/or
other information satisfactory to each of them; and
(iii) a transfer thereof to a Non-U.S. Person in reliance on
Regulation S shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the form set forth in Section 2.8 from the
proposed transferee and, if requested by the Company or the Trustee, the
delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them.
(b) The following provisions shall apply with respect to any proposed
transfer of a beneficial interest in a Regulation S Global Note or any
Definitive Securities issued in exchange therefor prior to the expiration of the
Restricted Period:
(i) a transfer thereof to a QIB in reliance on Rule 144A shall be
made upon the representation of the transferee, in the form of assignment set
forth on the reverse of the Securities, that it is purchasing the Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as the proposed
transferee has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;
(ii) a transfer thereof to an IAI shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set forth in
Section 2.7 from the proposed transferee and, if requested by the Company or
the Trustee, the delivery of an opinion of counsel, certification and/or
other information satisfactory to each of them; and
(iii) a transfer thereof to a Non-U.S. Person in reliance on
Regulation S shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the form set forth in Section 2.8 hereof from
the proposed transferee and, if requested by the
17
Company or the Trustee, receipt by the Trustee or its agent of an opinion of
counsel, certification and/or other information satisfactory to each of them.
After the expiration of the Restricted Period, beneficial interests in the
Regulation S Global Note or Definitive Securities issued in exchange therefor
may be transferred without requiring the certification set forth in Section 2.7
or Section 2.8 or any additional certification.
(c) Restricted Securities Legend. Upon the transfer, exchange or
replacement of Securities not bearing a Restricted Securities Legend, the
Registrar shall deliver Securities that do not bear a Restricted Securities
Legend. Upon the transfer, exchange or replacement of Securities bearing a
Restricted Securities Legend, the Registrar shall deliver only Securities that
bear a Restricted Securities Legend unless such Securities are Exchange
Securities issued in a Registered Exchange Offer or are otherwise sold under an
effective registration statement under the Securities Act or there is delivered
to the Registrar an Opinion of Counsel to the effect that neither such legend
nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act.
(d) The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.1 or this Section 2.6. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable prior written notice to the Registrar.
(e) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall, subject to the other terms and conditions of this Article II,
execute, and the Trustee shall authenticate, Definitive Securities and Global
Securities at the Registrar's or co-registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require from a
Holder payment of a sum sufficient to cover any transfer tax, assessments or
similar governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charges payable upon
exchange or transfer pursuant to Section 9.5).
(iii) The Registrar or co-registrar shall not be required (A) to
issue, to register the transfer of or to exchange any Security during a
period beginning at the opening of 15 days before the day of mailing of a
notice of redemption of Securities for redemption and ending at the close of
business on the day of such mailing, (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, or (C) to
register the transfer of or to exchange a Security between a record date and
the next succeeding interest payment date.
(iv) Prior to the due presentation for registration of transfer of
any Security, the Company, the Trustee, the Paying Agent, the Registrar or
any co-registrar may deem and treat the Person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest
18
on such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and neither the Company, the Trustee, the Paying Agent,
the Registrar nor any co-registrar shall be affected by notice to the
contrary.
(v) Any Definitive Security delivered in exchange for an interest
in a Global Security pursuant to Section 2.1(d) shall, except as otherwise
provided by Section 2.6(c), bear the applicable legend regarding transfer
restrictions applicable to the Definitive Security set forth in Section
2.1(c).
(vi) All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in, DTC
or other Person with respect to the accuracy of the records of DTC or its
nominee or of any participant or member thereof, with respect to any
ownership interest in the Securities or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than DTC) of any
notice (including any notice of redemption) or the payment of any amount or
delivery of any Securities (or other security or property) under or with
respect to such Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders in respect of the Securities
shall be given or made only to or upon the order of the registered Holders
(which shall be DTC or its nominee in the case of a Global Security). The
rights of beneficial owners in any Global Security shall be exercised only
through DTC subject to the applicable rules and procedures of DTC. The
Trustee may conclusively rely and shall be fully protected in relying upon
information furnished by DTC with respect to its members, participants and
any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or
among DTC participants, members or beneficial owners in any Global Security)
other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
SECTION 2.7 Form of Certificate to be Delivered in Connection with
Transfers to Institutional Accredited Investors.
[Date]
The Black & Xxxxxx Corporation
c/o The Bank of New York
19
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $_________ principal
amount of the 4 3/4% Senior Notes Due 2014 (the "Notes") of The Black & Xxxxxx
Corporation (the "Company").
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name: ___________________________________
Address: ________________________________
Taxpayer ID Number: _____________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risk of our investment in the Notes and we invest
in or purchase securities similar to the Notes in the normal course of our
business. We and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes prior to the date which is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Notes (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under the
Securities Act ("Rule 144A"), to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that purchases for its own account
or for the account of a QIB and 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 under the
Securities Act, (e) to an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is purchasing
for its own account or for the account of such an institutional "accredited
investor," in each case in a minimum principal amount of Notes of $250,000 or
(f) pursuant to any other available exemption from the registration requirements
of the Securities Act, subject in
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each of the foregoing cases to any requirement of law that the disposition of
our property or the property of such investor account or accounts be at all
times within our or their control and in compliance with any applicable state
securities laws. The foregoing restrictions on resale will not apply subsequent
to the Resale Restriction Termination Date. If any resale or other transfer of
the Notes is proposed to be made pursuant to clause (e) above prior to the
Resale Restriction Termination Date, the transferor shall deliver a letter from
the transferee substantially in the form of this letter to the Company and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" (within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) that is acquiring such Notes for investment
purposes and not for distribution in violation of the Securities Act. Each
purchaser acknowledges that the Company and the Trustee reserve the right prior
to any offer, sale or other transfer prior to the Resale Restriction Termination
Date of the Notes pursuant to clauses (d), (e) or (f) above to require the
delivery of an opinion of counsel, certifications and/or other information
satisfactory to the Company and the Trustee.
TRANSFEREE:______________________
BY:______________________________
SECTION 2.8 Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S.
[Date]
The Black & Xxxxxx Corporation
c/o The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: The Black & Xxxxxx Corporation
4 3/4% Senior Notes Due 2014 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(a) the offer of the Securities was not made to a person in the United
States;
(b) either (i) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States or (ii) the
transaction was executed in, on or through the
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facilities of a designated off-shore securities market and neither we nor any
person acting on our behalf knows that the transaction has been pre-arranged
with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of
Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a distribution compliance period
and the provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the case may
be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________
____________________________
Authorized Signature
SECTION 2.9 Mutilated, Destroyed, Lost or Stolen 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 and the
Holder satisfies any other reasonable requirements of the Trustee. Such Holder
shall furnish an indemnity bond sufficient in the judgment of the Company and
the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar
and any co-registrar from any loss which any of them may suffer if a Security is
replaced, and, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon Company Order the Trustee shall authenticate and make available for
delivery, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
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.
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Upon the issuance of any new Security under this Section 2.9, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant to this Section 2.9 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and any other obligor upon the
Securities, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
The provisions of this Section 2.9 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 2.10 Outstanding Securities. Securities outstanding at any time are
all Securities authenticated by the Trustee except for those canceled by it,
those delivered to it for cancellation, those paid pursuant to Section 2.9 and
those described in this Section 2.10 as not outstanding. A Security ceases to be
outstanding in the event the Company or a Subsidiary holds the Security;
provided, however, that (a) for purposes of determining which are outstanding
for consent or voting purposes hereunder, Securities shall cease to be
outstanding in the event the Company or an Affiliate of the Company holds the
Security and (b) in determining whether the Trustee shall be protected in making
a determination 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, or relying upon any such quorum, consent or vote, only Securities
which a Trust Officer of the Trustee actually knows to be held by the Company or
an Affiliate of the Company shall not be considered outstanding.
If a Security is replaced pursuant to Section 2.9, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a Redemption Date or maturity date money sufficient to pay all
principal and interest payable on that date with respect to the Securities (or
portions thereof) to be redeemed or maturing, as the case may be, and the Paying
Agent is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture, then on and after that date such
Securities (or portions thereof) cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.11 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
23
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
Definitive Securities. After the preparation of Definitive Securities, the
temporary Securities shall be exchangeable for Definitive Securities upon
surrender of the temporary Securities at any office or agency maintained by the
Company for that purpose and such exchange shall be without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities,
the Company shall execute, and the Trustee shall authenticate and make available
for delivery in exchange therefor, one or more Definitive Securities
representing an equal principal amount of Securities. Until so exchanged, the
Holder of temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as a holder of Definitive Securities.
SECTION 2.12 Cancellation. The Company 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 and no one else shall cancel and
return to the Company all Securities surrendered for registration of transfer,
exchange, payment or cancellation. The Company may not issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation for
any reason other than in connection with a transfer or exchange.
SECTION 2.13 Payment of Interest; Defaulted Interest. Interest on any
Security which is payable, and is punctually paid or duly provided for, on any
interest payment date shall be paid to the Person in whose name such Security
(or one or more predecessor Securities) is registered at the close of business
on the regular record date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 2.3.
Any interest on any Security which is payable, but is not paid when the
same becomes due and payable and such nonpayment continues for a period of 30
days shall forthwith cease to be payable to the Holder on the regular record
date by virtue of having been such Holder, and such defaulted interest and (to
the extent lawful) interest on such defaulted interest at the rate borne by the
Securities (such defaulted interest and interest thereon herein collectively
called "Defaulted Interest") shall be paid by the Company, at its election in
each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or their respective predecessor
Securities) are registered at the close of business on a Special Record Date (as
defined below) for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
(not less than 30 days after such notice) of the proposed payment (the "Special
Interest Payment Date"), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a record date (the "Special Record Date") for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the Special Interest Payment Date and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date, and in the name
24
and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date and Special Interest Payment
Date therefor to be given in the manner provided for in Section 10.2, not less
than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date and Special Interest
Payment Date therefor having been so given, such Defaulted Interest shall be
paid on the Special Interest Payment Date to the Persons in whose names the
Securities (or their respective predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.13, each Security
delivered under this Indenture upon registration of, transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.14 Computation of Interest. Interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.15 CUSIP and ISIN Numbers. The Company in issuing the Securities
may use "CUSIP" and "ISIN" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" and "ISIN" numbers in notices of redemption as a
convenience to Holders; provided, however, 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 CUSIP or ISIN numbers. The Company shall promptly notify the
Trustee in writing of any change in the CUSIP and ISIN numbers.
ARTICLE III
Covenants
SECTION 3.1 Payment of Securities. The Company shall promptly pay the
principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date.
The Company shall pay interest on overdue principal at the rate specified
therefor in the Securities, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
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Notwithstanding anything to the contrary contained in this Indenture, the
Company may, to the extent it is required to do so by law, deduct or withhold
income or other similar taxes imposed by the United States of America from
principal or interest payments hereunder.
SECTION 3.2 Limitation on Liens.
(a) The Company will not, and will not permit any Subsidiary to, directly
or indirectly, as security for any Debt, mortgage, pledge or create or permit to
exist any lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property, whether such shares of stock, indebtedness
or other obligations of a Subsidiary or Principal Property are owned at the date
of the Indenture or hereafter acquired, unless the Company secures or causes to
be secured any outstanding Securities equally and ratably with all Debt secured
by such mortgage, pledge or lien, so long as that Debt shall be secured;
provided, however, that the foregoing limitation shall not apply in the case of
(i) the creation of any mortgage, pledge or other lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or a Principal Property
hereafter acquired (including acquisitions by way of merger or consolidation) by
the Company or a Subsidiary contemporaneously with such acquisition, or within
120 days thereafter, to secure or provide for the payment or financing of any
part of the purchase price thereof, or the assumption of any mortgage, pledge or
other lien upon any shares of stock, indebtedness or other obligations of a
Subsidiary or a Principal Property hereafter acquired existing at the time of
such acquisition, or the acquisition of any shares of stock, indebtedness or
other obligations of a Subsidiary or a Principal Property subject to any
mortgage, pledge or other lien without the assumption thereof, provided that any
mortgage, pledge or lien referred to in this clause (i) shall attach only to the
shares of stock, indebtedness or other obligations of a Subsidiary or a
Principal Property so acquired and fixed improvements thereon, (ii) any
mortgage, pledge or other lien on any shares of stock, indebtedness or other
obligations of a Subsidiary or a Principal Property existing on the date that
the Securities are first issued, (iii) any mortgage, pledge or other lien on any
shares of stock, indebtedness or other obligations of a Subsidiary or a
Principal Property in favor of the Company or any Subsidiary, (iv) any mortgage,
pledge or other lien on a Principal Property being constructed or improved
securing Debt incurred to finance the construction or improvements, (v) any
mortgage, pledge or other lien on shares of stock, indebtedness or other
obligations of a Subsidiary or a Principal Property incurred in connection with
the issuance by a state or political subdivision thereof of any securities the
interest on which is exempt from federal income taxes by virtue of Section 103
of the United States Internal Revenue Code of 1986, as amended, or any other
laws and regulations in effect at the time of such issuance and (vi) any renewal
of or substitution for any mortgage, pledge or other lien permitted by any of
the preceding clauses (i) through (v), provided, in the case of a mortgage,
pledge or other lien permitted under clause (i), (ii) or (iv), the Debt secured
is not increased nor the lien extended to any additional assets.
(b) Notwithstanding the foregoing paragraph (a), the Company or any
Subsidiary may create or assume liens in addition to those permitted by the
foregoing paragraph (a), and renew, extend or replace such liens, provided that
at the time of such creation, assumption, renewal, extension or replacement, and
after giving effect thereto, Exempted Debt does not exceed 10% of Consolidated
Net Tangible Assets.
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SECTION 3.3 Limitation on Sale Leaseback Transactions. (a) The Company will
not, and will not permit, any Subsidiary to, sell or transfer, directly or
indirectly, except to the Company or a Subsidiary, a Principal Property as an
entirety, or any substantial portion thereof, with the intention of taking back
a lease of all or part of such property except a lease for a period of three
years or less at the end of which it is intended that the use of such property
by the lessee will be discontinued, provided that, notwithstanding the
foregoing, the Company or any Subsidiary may sell a Principal Property and lease
it back for a longer period (i) if the Company or such Subsidiary would be
entitled, pursuant to Section 3.2, to create a mortgage on the property to be
leased securing Debt in an amount equal to the Attributable Debt with respect to
the sale and lease-back transaction without equally and ratably securing the
outstanding Securities or (ii) if (A) the Company promptly informs the Trustee
of such transactions, (B) the net proceeds of such transaction are at least
equal to the fair value (as determined by a Board Resolution) of such property
and (C) the Company causes an amount equal to the net proceeds of the sale to be
applied to the retirement (whether by redemption, cancellation after open-market
purchases, or otherwise), within 120 days after receipt of such proceeds, of
Funded Debt having an outstanding principal amount equal to the net proceeds.
(b) Notwithstanding the foregoing paragraph (a), the Company or any
Subsidiary may enter into sale and lease-back transactions in addition to those
permitted by the foregoing paragraph (a), and without any obligation to retire
any outstanding Funded Debt, provided that at the time of entering into such
sale and lease-back transactions and after giving effect thereto, Exempted Debt
does not exceed 10% of Consolidated Net Tangible Assets.
SECTION 3.4 Maintenance of Office or Agency. The Company shall maintain in
The City of New York an office or agency where the Securities may be presented
or surrendered for payment, where, if applicable, the Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The principal corporate trust office (the "Corporate Trust
Office") of the Trustee located in The City of New York shall be such office or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any 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, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind any such designation; 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 City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such other office or agency.
SECTION 3.5 Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each Fiscal Year of the Company an
Officers' Certificate stating
27
that in the course of the performance by the signers of their duties as Officers
of the Company they would normally have knowledge of any Default or Event of
Default and whether or not the signers know of any Default or Event of Default
that occurred during such period. If they do, the certificate shall describe the
Default or Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with TIA
section 314(a)(4).
SECTION 3.6 Statement by Officers as to Default. The Company shall deliver
to the Trustee within 10 days after the Company becomes aware of the occurrence
of any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Default or Event of Default and the action which the
Company proposes to take with respect thereto.
SECTION 3.7 Further Instruments and Acts. Upon request of the Trustee or as
necessary, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE IV
Successor Company
SECTION 4.1 Merger, Consolidation or Sale of All or Substantially All
Assets of the Company. The Company shall not consolidate with or merge into, or
transfer, directly or indirectly, all or substantially all of its assets to
another corporation or other Person unless (a) the resulting, surviving or
transferee corporation or other Person assumes by supplemental indenture all the
obligations of the Company under the Securities and this Indenture, (b)
immediately after giving effect to such transaction, no Event of Default, and no
circumstances that, after notice or lapse of time or both, would become an Event
of Default, shall have happened and be continuing, and (c) the Company shall
have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture comply with this Indenture, and thereafter all such
obligations of the Company shall terminate.
ARTICLE V
Redemption of Securities
SECTION 5.1 Optional Redemption. The Securities may be redeemed, at the
option of the Company, at any time in whole, or from time to time in part,
subject to the conditions and at the redemption prices specified in the form of
Securities set forth in Exhibit A and Exhibit B hereto, which are hereby
incorporated by reference and made a part of this Indenture, together with
accrued and unpaid interest to the Redemption Date.
28
SECTION 5.2 Applicability of Article. Redemption of Securities at the
election of the Company or otherwise, as permitted by any provision of this
Indenture, shall be made in accordance with such provision and this Article V.
SECTION 5.3 Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities pursuant to Section 5.1 shall be evidenced by a
Board Resolution. In case of any redemption at the election of the Company, the
Company shall, upon not later than the earlier of the date that is 30 days prior
to the Redemption Date fixed by the Company or the date on which notice is given
to the Holders (except as provided in Section 5.5 or unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities to be redeemed and shall deliver
to the Trustee such documentation and records as shall enable the Trustee to
select the Securities to be redeemed pursuant to Section 5.4.
SECTION 5.4 Selection by Trustee of Securities to Be Redeemed. If less than
all the Securities are to be redeemed at the option of the Company at any time
pursuant to Section 5.1, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee from
the outstanding Securities not previously called for redemption, in compliance
with the requirements of the principal national securities exchange, if any, on
which such Securities are listed, or, if such Securities are not so listed, then
on a pro rata basis, by lot or by such other method as the Trustee shall deem
fair and appropriate (and in such manner as complies with applicable legal
requirements) and which may provide for the selection for redemption of portions
of the principal of the Securities; provided, however, that (a) Securities and
portions thereof that the Trustee selects shall be in amounts of $1,000 or an
integral multiple of $1,000 and (b) no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 5.5 Notice of Redemption. Notice of redemption shall be given in
the manner provided for in Section 10.2 not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed. The
Trustee shall give notice of redemption in the Company's name and at the
Company's expense; provided, however, that the Company shall deliver to the
Trustee, at least 15 days prior to the date on which such notice is to be given,
an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
following items.
All notices of redemption shall state:
(a) the Redemption Date;
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(b) the redemption price and the amount of accrued interest to the
Redemption Date payable as provided in Section 5.7 if any;
(c) if less than all outstanding Securities are to be redeemed,
the identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be outstanding
after such partial redemption;
(d) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will receive,
without charge, a new Security or Securities of authorized denominations for
the principal amount thereof remaining unredeemed;
(e) that on the Redemption Date the redemption price (and accrued
interest, if any, to the Redemption Date payable as provided in Section 5.7)
will become due and payable upon each such Security, or the portion thereof,
to be redeemed, and, unless the Company defaults in making the redemption
payment, that interest on Securities called for redemption (or the portion
thereof) will cease to accrue on and after said date;
(f) the place or places where such Securities are to be
surrendered for payment of the redemption price and accrued interest, if any;
(g) the name and address of the Paying Agent;
(h) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(i) the CUSIP and ISIN numbers, and that no representation is made
as to the accuracy or correctness of the CUSIP and ISIN numbers, if any,
listed in such notice or printed on the Securities; and
(j) the paragraph of the Securities pursuant to which the
Securities are to be redeemed.
SECTION 5.6 Deposit of Redemption Price. Prior to any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 2.4) an amount of money sufficient to pay the redemption
price of, and accrued interest on, all the Securities which are to be redeemed
on that date.
SECTION 5.7 Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the redemption price therein
specified (together with accrued interest, if any, to the Redemption Date), and
from and after such date (unless the Company shall default in the payment of the
redemption price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with
said notice,
30
such Security shall be paid by the Company at the redemption price, together
with accrued interest, if any, to the Redemption Date (subject to the rights of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by the Securities.
SECTION 5.8 Securities Redeemed in Part. Any Security which is to be
redeemed only in part pursuant to the provisions of this Article V shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 3.4 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and make available for delivery to the Holder of such
Security at the expense of the Company, a new Security or Securities, of any
authorized denomination as requested by such Holder, in an aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered, provided that each such new Security will be in a
principal amount of $1,000 or integral multiple thereof.
ARTICLE VI
Defaults and Remedies
SECTION 6.1 Events of Default. An "Event of Default" occurs if:
(a) the Company defaults in any payment of interest or additional interest
(as required by the Exchange and Registration Rights Agreement) on any Security
when the same becomes due and payable, and such default continues for a period
of 30 days;
(b) the Company defaults in the payment of the principal on any Security
when the same becomes due and payable at its Stated Maturity, upon optional
redemption, upon declaration or otherwise;
(c) the Company defaults in the performance of or breaches any covenant or
agreement in this Indenture or under the Securities, other than those referred
to in paragraph (a) or (b) above, and such default continues for 30 days after
written notice (which notice must specify the default, demand that it be
remedied and state that the notice is a "Notice of Default") from the Trustee or
the Holders of at least 25% in principal amount of the outstanding Securities;
(d) the Company or any of its Subsidiaries fails to pay, in accordance with
its terms and when payable, any of the principal, interest or additional
amounts, if any, on any Debt (including the Securities, other than the
Securities, if any, with respect to which the failure to pay principal, interest
or additional interest is also an Event of Default under Section 6.1(a), 6.1(b)
or both) having, in the aggregate, a then-outstanding principal amount in excess
of $50,000,000, at the later of final maturity or the expiration of any
applicable grace period or (ii) the maturity of
31
Debt in an aggregate principal amount in excess of $50,000,000 is accelerated,
if such acceleration results from a default under the instrument giving rise to
or securing such Debt;
(e) the Company pursuant to or within the meaning of any Bankruptcy Law (as
defined below):
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an
involuntary case;
(iii) consents to the appointment of a Custodian (as defined below)
of it or for any substantial part of its property; or
(iv) makes a general assignment for the benefit of its creditors;
or
(f) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case;
(ii) appoints a Custodian of the Company for all or substantially
all of the Company's property; or
(iii) orders the winding up or liquidation of the Company; and
in each case the order or decree remains unstayed and in effect for 60 days.
The foregoing will constitute Events of Default whatever the reason for any
such Event of Default and whether it is voluntary or involuntary or is 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.
The term "Bankruptcy Law" means Title 11, United States Code, or any
similar federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
SECTION 6.2 Acceleration. If an Event of Default described in clauses (a),
(b), (c) and (d) of Section 6.1 occurs and is continuing, the Trustee, or the
Holders of at least 25% in outstanding principal amount of the Securities, by
notice to the Company, may, and the Trustee at the written request of such
Holders shall, declare the principal of and accrued and unpaid interest, if any,
on all the Securities to be due and payable. Upon such a declaration, such
principal and accrued and unpaid interest shall be immediately due and payable.
If an Event of Default described in clauses (e) and (f) above occurs and is
continuing, the principal of and accrued and unpaid interest on all the
Securities will become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders.
32
SECTION 6.3 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 or interest on the Securities or to enforce the performance of
any provision of the Securities 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 Securityholder 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. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4 Waiver of Past Defaults. The Holders of a majority in principal
amount of the outstanding Securities by notice to the Trustee may (a) waive, by
their consent (including, without limitation consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Securities), an
existing Default or Event of Default and its consequences except (i) a Default
or Event of Default in the payment of the principal of or interest on a Security
or (ii) a Default or Event of Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of each Securityholder
affected and (b) rescind any such acceleration with respect to the Securities
and its consequences if (i) rescission would not conflict with any judgment or
decree of a court of competent jurisdiction and (ii) all existing Events of
Default, other than the nonpayment of the principal of and interest on the
Securities that have become due solely by such declaration of acceleration, have
been cured or waived. When a Default or Event of Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any consequent right.
SECTION 6.5 Control by Majority. The Holders of a majority in principal
amount of the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.1 and Section 7.2, that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would 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 indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.6 Limitation on Suits. Subject to Section 6.7, a Securityholder
may not pursue any remedy with respect to this Indenture or the Securities
unless:
(a) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(b) the Holders of at least 25% in outstanding principal amount of
the Securities make a request to the Trustee to pursue the remedy;
33
(c) such Holder or Holders offer to the Trustee commercially
reasonable security or indemnity satisfactory to the Trustee against any
loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(e) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction that, in the opinion of the
Trustee, is inconsistent with such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over another
Securityholder, it being understood and intended that no one or more of such
Securityholders will have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb, or prejudice
the rights of any other of such Securityholders (it being understood that the
Trustee does not have an affirmative duty to ascertain whether or not such
actions or forbearances are unduly prejudicial to such Securityholders).
SECTION 6.7 Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture (including, without limitation, Section 6.6), the
right of any Holder to receive payment of principal of or interest on the
Securities held by such Holder, on or after the respective due dates expressed
in the Securities, or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of Default specified in
Section 6.1(a) or (b) occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company for the
whole amount then due and owing (together with interest on any unpaid interest
to the extent lawful) and the amounts provided for in Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Securityholders allowed in any judicial
proceedings relative to the Company, its Subsidiaries or its or their respective
creditors or properties and may vote on behalf of the Holders in any election of
a trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make 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 it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.7.
SECTION 6.10 Priorities. If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money or property in the
following order:
34
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as 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 and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a suit
by the Trustee, a suit by the Company, a suit by a Holder pursuant to Section
6.7 or a suit by Holders of more than 10% in outstanding principal amount of the
Securities.
ARTICLE VII
Trustee
SECTION 7.1 Duties of Trustee. (a) If an Event of Default has occurred and
is continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in its exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs, provided that if an Event of Default occurs and is
continuing, the Trustee will be under no obligation to exercise any of the
rights or powers under this Indenture at the request or direction of any of the
Holders unless such Holders have offered to the Trustee commercially reasonable
indemnity or security satisfactory to it against any loss, liability or expense
(other than as provided in clause (c) below).
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) 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, in
the case of any such certificates or opinions which by any provisions hereof
are specifically
35
required to be furnished to the Trustee, the Trustee shall examine such
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.1;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) 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 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.1.
(e) 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.
(f) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or powers,
if it shall have reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(h) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.1 and to the provisions of the TIA.
(i) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer.
(j) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders shall have offered to the Trustee commercially
reasonable security or indemnity satisfactory to it against any loss, liability
or expense (including reasonable attorneys' fees and expenses) that might be
incurred by it in compliance with such request or direction.
36
SECTION 7.2 Rights of Trustee. Subject to Section 7.1,
(a) The Trustee may conclusively rely on any document (whether in its
original or facsimile form) reasonably 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 and/or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on an
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent 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; provided, however, that the Trustee's conduct does not constitute
willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make further inquiry or investigation into such
facts or matters as it may see fit, personally or by agent or attorney, at the
sole cost of the Company and with the Company's cooperation and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.
(g) The rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder.
(h) In no event shall the Trustee be responsible or liable for special,
indirect, or consequential loss or damage of any kind whatsoever (including, but
not limited to, loss of profit) irrespective of whether the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of
action.
(i) The Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Trust Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture.
37
(j) The Trustee may request that the Company deliver a certificate setting
forth the names of individuals and/or titles of officers authorized at such time
to take specified actions pursuant to this Indenture.
SECTION 7.3 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 or its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Section 7.10 and Section 7.11. In addition, the Trustee shall be
permitted to engage in transactions with the Company; provided, however, that if
the Trustee acquires any conflicting interest the Trustee must (a) eliminate
such conflict within 90 days of acquiring such conflicting interest, (b) apply
to the SEC for permission to continue acting as Trustee or (c) resign.
SECTION 7.4 Trustee's Disclaimer. The Trustee shall not be responsible for
and makes no representation as to the validity or adequacy of this Indenture or
the Securities, shall not be accountable for the Company's use of the proceeds
from the Securities and shall not be responsible for any statement of the
Company in this Indenture or in any document issued in connection with the sale
of the Securities or in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.5 Notice of Defaults. If a Default or Event of Default occurs and
is continuing and if a Trust Officer has actual knowledge thereof, the Trustee
shall mail to each Securityholder at the address set forth in the Note Register
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
interest on any Security (including payments pursuant to the optional redemption
provisions of such Security), the Trustee may withhold the notice if and so long
as its Board of Directors, a committee of its Board of Directors or a committee
of its Trust Officers in good faith determines that withholding the notice is in
the interests of Securityholders.
SECTION 7.6 Reports by Trustee to Holders. As promptly as practicable after
each May 15 beginning with the May 15 following the date of this Indenture, and
in any event prior to July 15 in each year, the Trustee shall mail to each
Securityholder a brief report dated as of such May 15 that complies with TIA
section 313(a) if such report is required by such section. The Trustee also
shall comply with TIA section 313(b). The Trustee shall also transmit by mail
all reports required by TIA section 313(c).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange (if any) on which the Securities
are listed. The Company agrees to notify promptly the Trustee whenever the
Securities become listed on any stock exchange and of any delisting thereof.
SECTION 7.7 Compensation and Indemnity. The Company shall pay to the
Trustee from time to time such compensation for its acceptance of this Indenture
and services hereunder as the Company and the Trustee shall from time to time
agree in writing. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-
38
pocket expenses incurred or made by it, including costs of collection, costs of
preparing and reviewing reports, certificates and other documents, costs of
preparation and mailing of notices to Securityholders and reasonable costs of
counsel retained by Trustee in connection with the delivery of an Opinion of
Counsel or otherwise, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's agents, counsel, accountants and experts. The
Company shall indemnify the Trustee against any and all loss, liability,
damages, claims or expense (including reasonable attorneys' fees and expenses)
incurred by it without negligence or bad faith on its part in connection with
the acceptance or administration of this trust and the performance of its duties
hereunder, including the costs and expenses of enforcing this Indenture
(including this Section 7.7) and of defending itself against any claims (whether
asserted by any Securityholder, the Company or otherwise). The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend the claim and the Trustee
shall provide reasonable cooperation in the defense. The Trustee may have
separate counsel and the Company shall pay the fees and expenses of such
counsel, provided that the Company shall not be required to pay such fees and
expenses if it assumes the Trustee's defense, and, in the reasonable judgment of
counsel to the Trustee, there is no conflict of interest between the Company and
the Trustee in connection with such defense. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section 7.7 the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, other than money or property held in trust to pay
principal of and interest on particular Securities. The Trustee's right to
receive payment of any amounts due under this Section 7.7 shall not be
subordinate to any other liability or Debt of the Company.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.1(e) or (f) with respect to
the Company, the expenses are intended to constitute expenses of administration
under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee. The Trustee may resign at any time by
so notifying the Company. The Holders of a majority in principal amount of the
Securities may remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Trustee
or its property; or
(d) the Trustee otherwise becomes incapable of acting.
39
If the Trustee resigns or is removed by the Company or by the Holders of a
majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of the Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. 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 Securityholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.7.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of 10% in principal amount of the Securities may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee.
SECTION 7.9 Successor Trustee by Xxxxxx. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such 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, provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Securities in the name
of any predecessor Trustee shall only apply to its successor or successors by
merger, consolidation or conversion.
SECTION 7.10 Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of TIA section 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
section 310(b); provided, however, that there shall be excluded from the
operation of TIA section 310(b)(1) any indenture or indentures under which other
40
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA section 310(b)(1) are met.
SECTION 7.11 Preferential Collection of Claims Against Company. The Trustee
shall comply with 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.
ARTICLE VIII
Satisfaction and Discharge of Indenture
SECTION 8.1 Option To Effect Legal Defeasance or Covenant Defeasance. The
Company may, at the option of its Board of Directors evidenced by a Board
Resolution, at any time, elect to have either Section 8.2 or Section 8.3 be
applied to all outstanding Securities upon compliance with the conditions set
forth below in this Article VIII.
SECTION 8.2 Legal Defeasance and Discharge. Upon the Company's exercise
under Section 8.1 of the option applicable to this Section 8.2, the Company
shall be deemed to have been discharged from its obligations under this
Indenture with respect to all outstanding Securities on the date the conditions
set forth below are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, such Legal Defeasance means that the Company shall be deemed to have
paid and discharged all the obligations relating to the outstanding Securities
and such Securities shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.6 and Section 8.8, and to have satisfied all of its other
obligations under such Securities and this Indenture and cured all then existing
Events of Default with respect to such Securities (and the Trustee, on demand of
and at the expense of the Company shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding
Securities to receive payments in respect of the principal and accrued interest
on such Securities when such payments are due or on the Redemption Date solely
out of the trust created pursuant to this Indenture; (b) the rights, powers,
trusts, duties and immunities of the Trustee, and the Company's obligations in
connection therewith; and (c) this Article VIII and the obligations set forth in
Section 8.6 hereof.
SECTION 8.3 Covenant Defeasance. Upon the Company's exercise under Section
8.1 of the option applicable to this Section 8.3, the Company shall be released
from any obligations under the covenants contained in Section 3.2 and Section
3.3 hereof with respect to the outstanding Securities on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Securities shall thereafter be deemed not "outstanding" for the purposes
of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes). For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other
41
provision herein or in any other document and such omission to comply shall not
constitute a Default or Event of Default with respect to the Securities under
Section 6.1(c), nor shall any event referred to in Section 6.1(d) thereafter
constitute a Default or Event of Default with respect to the Securities, but,
except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 8.4 Conditions to Legal or Covenant Defeasance. The following shall
be the conditions to the application of either Section 8.2 or Section 8.3 to the
outstanding Securities:
(a) in the case of Legal Defeasance, either (i) all Securities
theretofore authenticated and delivered under the Indenture must have been
delivered to the Trustee for cancellation or (ii) the Company must
irrevocably deposit, or cause to be irrevocably deposited, with the Trustee,
in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable
U.S. Government Securities or a combination thereof in such amounts (and, in
the case of U.S. Government Securities, together with the predetermined and
certain income to accrue thereon, without consideration of any reinvestment
thereof) as will be sufficient to pay the principal of and accrued interest
due on the outstanding Securities on the Stated Maturity date or on the
applicable Redemption Date, as the case may be, of such principal of and
accrued interest on the outstanding Securities;
(b) in the case of Covenant Defeasance, the Company must
irrevocably deposit, or cause to be irrevocably deposited, with the Trustee,
in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable
U.S. Government Securities or a combination thereof in such amounts (and, in
the case of U.S. Government Securities, together with the predetermined and
certain income to accrue thereon, without consideration of any reinvestment
thereof) as will be sufficient to pay the principal of and accrued interest
due on the outstanding Securities on the Stated Maturity date or on the
applicable Redemption Date, as the case may be, of such principal of and
accrued interest on the outstanding Securities;
(c) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that, subject to customary assumptions and exclusions, (i)
the Company has received from, or there has been published by, the U.S.
Internal Revenue Service a ruling or (ii) since the Issue Date, there has
been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
subject to customary assumptions and exclusions, the Holders will not
recognize income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Legal Defeasance had not occurred;
(d) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that, subject to customary assumptions and exclusions, the
Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to such
tax on the same amounts, in the same
42
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(e) such Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under any material agreement or
instrument to which the Company is a party or by which the Company is bound;
(f) in the case of Legal Defeasance, 91 days shall have passed
during which no Event of Default under Section 6.1(e) or Section 6.1(f) has
occurred;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities and this
Indenture as contemplated by this Article VIII have been complied with; and
(h) the Company shall have delivered to the Trustee a certificate
from a nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and accrued interest when due and
without reinvestment on the deposited U.S. Government Securities plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and accrued interest when
due on all the Securities to maturity.
SECTION 8.5 Satisfaction and Discharge of Indenture. This Indenture will be
discharged with respect of the Securities and will cease to be of further effect
as to all Securities issued thereunder, when either (a) all such Securities
theretofore authenticated and delivered (except lost, stolen or destroyed
Securities which have been replaced or paid and Securities for whose payment
money has theretofore been deposited in trust and thereafter repaid to the
Company) have been delivered to the Trustee for cancellation; or (b)(i) all such
Securities not theretofore delivered to the Trustee for cancellation have become
due and payable by reason of the mailing of a notice of redemption or otherwise
or will become due and payable within one year and the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust an
amount of money in U.S. dollars or U.S. Government Securities or any combination
thereof sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation for
principal and accrued and unpaid interest to the date of maturity or redemption;
(ii) no Default with respect to the Securities shall have occurred within 91
days of such deposit or shall occur as a result of such deposit and such deposit
will not result in a breach or violation of, or constitute a default under, any
other instrument to which the Company is a party or by which it is bound; (iii)
the Company has paid or caused to be paid all sums payable by it with respect to
the Securities under this Indenture; and (iv) the Company has delivered
irrevocable instructions to the Trustee under this Indenture to apply the
deposited money toward the payment of such Securities at maturity or the
Redemption Date, as the case may be. In addition, with respect to clause (b) of
the preceding sentence, the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, stating that all conditions
precedent specified herein relating to the satisfaction and discharge of this
Indenture have been complied with.
43
SECTION 8.6 Survival of Certain Obligations. Notwithstanding the
satisfaction and discharge of this Indenture referred to in Section 8.1, Section
8.2, Section 8.3, Section 8.4 or Section 8.5, the respective obligations of the
Company and the Trustee under Section 2.2, Section 2.3, Section 2.4, Section
2.5, Section 2.6, Section 2.9, Section 2.10, Section 2.11, Section 2.12, Section
3.4, Section 3.5, Section 3.6, Section 3.7, Section 6.7, Section 7.7, Section
7.8 and this Article VIII shall survive until the Securities are no longer
outstanding. Nothing contained in this Article VIII shall abrogate any of the
obligations or duties of the Trustee under this Indenture.
SECTION 8.7 Acknowledgment of Discharge by Trustee. Subject to Section
8.10, after (a) the conditions of Section 8.4 or Section 8.5 have been
satisfied, (b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company and (c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent referred to in clause (a) above relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon written request shall acknowledge in writing the discharge of all
of the Company's obligations under this Indenture except for those surviving
obligations specified in this Article VIII.
SECTION 8.8 Application of Trust Moneys. All cash in U.S. dollars and U.S.
Government Securities deposited with the Trustee pursuant to Section 8.4 or
Section 8.5 shall be held in trust and applied by the Trustee, in accordance
with the provisions of this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders, of all sums due and to become due
thereon for principal and accrued interest but such money need not be segregated
from other funds except to the extent required by law. The Holder of any
Security replaced pursuant to Section 2.9 shall not be entitled to any such
payment and shall look only to the Company for any payment which such Holder may
be entitled to collect. In connection with the satisfaction and discharge of
this Indenture or the defeasance of certain obligations under this Indenture,
the Company may direct the Trustee to (a) invest any money received by the
Trustee in the U.S. Government Securities deposited in trust in additional U.S.
Government Securities, and (b) deliver or pay to the Company from time to time
upon the request of the Company any money or U.S. Government Securities held by
it, which, as evidenced by a certificate from a nationally recognized firm of
independent accountants, are in excess of the amount thereof which would then
have been required to be deposited for the purpose for which such money or U.S.
Government Securities were deposited or received.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Securities
deposited pursuant to Section 8.4 or Section 8.5 or the principal or interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders.
SECTION 8.9 Repayment to the Company; Unclaimed Money. The Trustee and any
Paying Agent shall promptly pay or return to the Company upon written request
any cash or U.S. Government Securities held by them at any time that are not
required for the payment of the principal and interest on the Securities for
which cash or U.S. Government Securities have been deposited pursuant to Section
8.4 or Section 8.5.
44
SECTION 8.10 Reinstatement. If the Trustee or Paying Agent is unable to
apply any cash or U.S. Government Securities in accordance with Section 8.2,
Section 8.3, Section 8.4 or Section 8.5 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.2, Section
8.3, Section 8.4 or Section 8.5 until such time as the Trustee or Paying Agent
is permitted to apply all such cash or U.S. Government Securities in accordance
with Section 8.2, Section 8.3, Section 8.4 or Section 8.5; provided, however,
that if the Company has made any payment of principal of or interest on any
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Securities held by the Trustee or
Paying Agent.
ARTICLE IX
Amendments
SECTION 9.1 Without Consent of Holders. The Company and the Trustee may
amend this Indenture or the Securities without notice to or consent of any
Securityholder:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to comply with Article IV in respect of the assumption by a
Successor Company of an obligation of the Company under this Indenture;
(c) to add guarantees with respect to the Securities;
(d) to secure the Securities;
(e) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company;
(f) to make any change that does not adversely affect the rights
of any Securityholder; or
(g) to comply with any requirement of the SEC in connection with
the qualification of this Indenture under the TIA.
After an amendment under this Section 9.1 becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders at the address set forth in
the Note Register, or any defect therein, shall not impair or affect the
validity of an amendment under this Section 9.1.
SECTION 9.2 With Consent of Holders. The Company and the Trustee may amend
this Indenture or the Securities without notice to any Securityholder but with
the written consent of the Holders of at least a majority in principal amount of
the Securities then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or
45
tender offer or exchange offer for, Securities). However, without the consent of
each Securityholder affected, an amendment may not:
(a) reduce the amount of Securities whose Holders must consent to
an amendment;
(b) reduce the stated rate of or extend the stated time for
payment of interest on any Security;
(c) reduce the principal of or extend the Stated Maturity of any
Security;
(d) reduce the premium payable upon the redemption of any Security
or change the time at which any Security may or shall be redeemed as
described above under Article V or any similar provision, whether through an
amendment to or waiver of Article V, a definition or otherwise;
(e) make any Security payable in money other than that stated in
the Security;
(f) impair the right of any Holder to receive payment of principal
of and interest on such Xxxxxx's Securities on or after the due dates
therefor or to institute suit for the enforcement of any payment on or with
respect to such Xxxxxx's Securities; or
(g) make any change to the amendment provisions which require each
Holder's consent or the waiver provisions in Section 6.4 which require each
Holder's consent.
It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2 becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.2.
SECTION 9.3 Compliance with Trust Indenture Act. Every amendment to this
Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.4 Revocation and Effect of Consents and Waivers. A consent to an
amendment or a waiver by a Holder of a Security shall bind the Holder and every
subsequent Holder of that Security or portion of the Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
or waiver is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent or waiver as to such Holder's Security or portion
of the Security if the Trustee receives the notice of revocation before the date
the amendment or waiver becomes effective or otherwise in accordance with any
related solicitation documents. After an amendment or waiver becomes effective,
it shall bind
46
every Securityholder. An amendment or waiver shall become effective upon receipt
by the Trustee of the requisite number of written consents under Section 9.1 or
Section 9.2 as applicable.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent or action shall be valid or effective if given
or taken more than 120 days after such record date.
SECTION 9.5 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 9.6 Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment 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 such amendment the
Trustee shall receive indemnity reasonably satisfactory to it and receive, and
(subject to Section 7.1 and Section 7.2) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture and that such amendment
is the legal, valid and binding obligation of the Company, enforceable against
it in accordance with its terms, subject to customary exceptions, and complies
with the provisions hereof (including Section 9.3).
ARTICLE X
Miscellaneous
SECTION 10.1 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 provision required by
the TIA shall control.
SECTION 10.2 Notices. Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
The Black & Xxxxxx Corporation
47
000 Xxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Treasurer
with copies to:
The Black & Xxxxxx Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Miles & Xxxxxxxxxxx, P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxxxx Xxxx, Esq.
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 10286
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a registered Securityholder shall be
mailed by first-class mail to the Securityholder at the Securityholder's address
as it appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 10.3 Communication by Holders with other Holders. Securityholders
may communicate pursuant to TIA section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA section
312(c).
SECTION 10.4 Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions
48
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
SECTION 10.5 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such individual, 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
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters
on an Officers' Certificate or on certificates of public officials.
SECTION 10.6 When Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which a Trust Officer of the Trustee actually knows are so owned
shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 10.7 Rules by Trustee, Paying Agent and Registrar. The Trustee may
make reasonable rules for action by, or a meeting of, Securityholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 10.8 Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or
other day on which commercial banking institutions are authorized or required to
be closed in New York City. If a payment date is a Legal Holiday, payment shall
be made on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period. If a regular record date is a Legal
Holiday, the record date shall not be affected.
49
SECTION 10.9 GOVERNING LAW; WAIVER OF JURY TRIAL. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 10.10 No Recourse Against Others. An incorporator, director,
officer, employee, Affiliate or stockholder of the Company, solely by reason of
this status, shall not have any liability for any obligations of the Company
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Securityholder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Securities.
SECTION 10.11 Successors. All agreements of the Company in this Indenture
and the Securities shall bind its successors. All agreements of the Trustee in
this Indenture shall bind its successors.
SECTION 10.12 Multiple Originals. The parties may sign any number of copies
of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 10.13 Variable Provisions. The Company initially appoints the
Trustee as Paying Agent and Registrar and custodian with respect to any Global
Securities.
SECTION 10.14 Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 10.15 Force Majeure. In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond its
control, including, without limitation strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it being
understood that the Trustee shall use reasonable efforts that are consistent
with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
50
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
THE BLACK & XXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President and
Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxxxx Xxxxxx
----------------------------
Xxxxxxxx Xxxxxx
Vice President
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY AND ADDITIONAL SECURITY]
[Applicable Restricted Securities Legend]
[Depository Legend, if applicable]
No. ___ Principal Amount $__________,
as revised by the Schedule of
Increases and Decreases in
Global Security attached hereto
CUSIP NO. ____________
ISIN: ____________
4 3/4% Senior Notes Due 2014
The Black & Xxxxxx Corporation, a Maryland corporation, promises to pay to
__________, or registered assigns, the principal sum of _______________ Dollars,
as revised by the Schedule of Increases and Decreases in Global Security
attached hereto, on November 1, 2014.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Additional provisions of this Security are set forth on the other side of
this Security.
THE BLACK & XXXXXX CORPORATION
By:
----------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York,
as Trustee, certifies that this
is one of the Securities referred
to in the Indenture.
By
--------------------
Authorized Signatory Date: October __, 2004
A-1
[FORM OF REVERSE SIDE OF INITIAL SECURITY AND ADDITIONAL SECURITY]
4 3/4% Senior Note Due 2014
1. Interest
The Black & Xxxxxx Corporation, a Maryland corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above.
The Company will pay interest semiannually on May 1 and November 1 of each
year commencing May 1, 2005. Interest on the Securities will accrue from the
most recent date to which interest has been paid on the Securities or, if no
interest has been paid, from October 18, 2004. The Company shall pay interest on
overdue principal or premium, if any (plus interest on such interest to the
extent lawful), at the rate borne by the Securities to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
If (i) the Registered Exchange Offer is not consummated, or the Shelf
Registration Statement, if required, is not declared effective, on or prior to
210 days after the Issue Date or (ii) the Shelf Registration Statement is filed
and declared effective within 210 days after the Issue Date but shall thereafter
cease to be effective (at any time that the Company is obligated to maintain the
effectiveness thereof) without being succeeded within 30 days by an additional
Registration Statement filed and declared effective (each such event referred to
in clauses (i) and (ii), a "Registration Default"), the annual interest rate
borne by this Security shall be increased by 0.25% from the rate shown above
during the period of one or more such Registration Defaults until (a) the
Registered Exchange Offer is consummated or (b) the Shelf Registration Statement
is declared effective or again becomes effective, as the case may be. Following
the cure of all Registration Defaults, the accrual of additional interest will
cease. Capitalized terms used in this paragraph, but not otherwise defined
herein shall have the meanings ascribed to such terms in the Exchange and
Registration Rights Agreement, dated as of October 18, 2004 (the "Registration
Rights Agreement"), among the Company, X.X. Xxxxxx Securities Inc., Banc of
America Securities LLC, Citigroup Global Markets Inc. and the other Initial
Purchasers named therein. The Holder of this Security is entitled to the
benefits of the Registration Rights Agreement.
2. Method of Payment
By at least 10:00 a.m. (New York City time) on the date on which any
principal of or interest on any Security is due and payable, the Company shall
deposit with the Trustee or the Paying Agent money sufficient to pay such
principal, premium, if any, and/or interest when due. The Company will pay
interest (except Defaulted Interest) to the Persons who are registered Holders
of Securities at the close of business on April 15 or October 15 next preceding
the interest payment date even if Securities are cancelled, repurchased or
redeemed after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private
A-2
debts. Except as described in the succeeding two sentences, the principal of,
premium, if any, and interest on the Securities shall be payable at the office
or agency of the Company maintained for such purpose in The City of New York, or
at such other office or agency of the Company as may be maintained for such
purpose pursuant to Section 2.3 of the Indenture; provided, however, that, at
the option of the Company, each installment of interest may be paid by check
mailed to addresses of the Persons entitled thereto as such addresses shall
appear on the Note Register. Payments in respect of Securities represented by a
Global Security (including principal, premium, if any, and interest) will be
made by wire transfer of immediately available funds to the accounts specified
by The Depository Trust Company. Payments in respect of Securities represented
by Definitive Securities (including principal, premium, if any, and interest)
held by a Holder of at least $1,000,000 aggregate principal amount of Securities
represented by Definitive Securities 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 15
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, The Bank of New York (the "Trustee"), will act as Trustee,
Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice to any Securityholder. The Company or
any of its Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of October
18, 2004 (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "Indenture"), between the Company and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the "Act").
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms. In the event of any inconsistency between the terms of this
Security and the terms of the Indenture, the terms of the Indenture shall
control.
The Securities are general unsecured senior obligations of the Company,
including (a) $300,000,000 aggregate principal amount of Securities being
offered on the Issue Date (subject to Section 2.9 of the Indenture) and (b) any
Additional Securities. This Security is one of the Securities referred to in the
Indenture. The Initial Securities, Additional Securities and Exchange Securities
will be treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on, among other things: the incurrence of
certain liens and sale-leaseback transactions by the Company or its Subsidiaries
and consolidations, mergers and sales of assets of the Company.
5. Redemption
A-3
The Securities will be redeemable, in whole or in part, at any time, at the
option of the Company, upon not less than 30 and not more than 60 days prior
notice mailed by first-class mail to each Holder of Securities to be so redeemed
at such Xxxxxx's registered address, at a redemption price equal to the greater
of
o 100% of the principal amount of the Securities to be redeemed; or
o the sum of the present values of the remaining scheduled payments of
principal of and interest on the Securities to be redeemed, exclusive of
interest accrued to the redemption date, discounted to the redemption date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate (as defined below), plus 15 basis
points as calculated by an Independent Investment Banker;
plus, in either case, accrued and unpaid interest on the principal amount of the
Securities to be redeemed to the redemption date.
For purposes of determining the optional redemption price, the following
definitions are applicable:
"Adjusted Treasury Rate" means, with respect to any redemption date for the
Securities,
o the yield, under the heading that represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication
that is published weekly by the Board of Governors of the Federal Reserve
System and that 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 Comparable
Treasury Issue (if no maturity is within three months before or after the
applicable maturity date, yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue shall be determined
and the Adjusted Treasury Rate shall be interpolated or extrapolated from
such yields on a straight line basis, rounding to the nearest month); or
o 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, 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 Adjusted Treasury Rate shall be calculated on the third business day
preceding the redemption date.
"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 such Securities.
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"Comparable Treasury Price" means, with respect to any redemption date (1)
the average of five Reference Treasury Dealer Quotations obtained by the Trustee
for that redemption date, after excluding the highest and lowest of such
reference Treasury Dealer Quotations; or (2) if the Trustee obtains fewer than
five such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations obtained by the Trustee.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means (1) X.X. Xxxxxx Securities Inc., Banc of
America Securities LLC, Citigroup Global Markets Inc. (or their successors);
provided, however, that if any of the foregoing shall cease to 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; and (2) any
other Primary Treasury Dealer appointed by the Trustee in consultation with the
Company.
"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 for
the Securities, 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.
In the case of any partial redemption, selection of the Securities for
redemption will be made by the Trustee not more than 60 days prior to the
redemption date and by such method as the Trustee shall deem to be fair and
appropriate (and in such manner as complies with applicable legal requirements)
provided that (i) Securities and portions thereof that the Trustee selects shall
be in amounts of $1,000 or an integral multiple of $1,000 and (ii) no such
partial redemption shall reduce the portion of the principal amount of a
Security not redeemed to less than $1,000. If any Security is to be redeemed in
part only, the notice of redemption relating to such Security shall state the
portion of the principal amount thereof to be redeemed. A new Security in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Security. On and
after the redemption date, interest will cease to accrue on Securities or
portions thereof called for redemption as long as the Company has deposited with
the Trustee or with a Paying Agent (or, if applicable, segregated and held in
trust) money sufficient to pay the redemption price of, and accrued interest on,
all the Securities which are to be redeemed on such date.
6. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations of
principal amount of $1,000 and whole multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not (A) issue, register the transfer of or
exchange any Security during a period beginning at the opening of 15 days before
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the day of any selection of Securities for redemption and ending at the close of
business on the day of selection, (B) 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, or (C) register the
transfer of or to exchange a Security between a record date and the next
succeeding interest payment date.
7. Persons Deemed Owners
The registered Holder of this Security will be treated as the owner of it
for all purposes.
8. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company at
its request unless an abandoned property law designates another Person. After
any such payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment.
9. Defeasance
Subject to certain conditions set forth in the Indenture, the Company at
any time may terminate some or all of its obligations under the Securities and
the Indenture if the Company deposits with the Trustee money or U.S. Government
Securities for the payment of principal, premium, if any, and interest on the
Securities to redemption or maturity, as the case may be.
10. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended with the written consent of the Holders of at
least a majority in principal amount of the then outstanding Securities and (ii)
any default (other than with respect to nonpayment or in respect of a provision
that cannot be amended without the written consent of each Securityholder
affected) or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in principal amount of the then outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Securityholder, the Company and the Trustee may amend the
Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article IV of the Indenture, or to add
guarantees with respect to the Securities, or to secure the Securities, or to
add additional covenants of the Company, or surrender rights and powers
conferred on the Company, or to comply with any request of the SEC in connection
with qualifying the Indenture under the Act, or to make any change that does not
adversely affect the rights of any Securityholder.
11. Defaults and Remedies
Under the Indenture, Events of Default include (i) default in any payment
of interest or additional interest on any Security when due, continued for 30
days; (ii) default in the payment of principal or premium, if any, on any
Security when due at its Stated Maturity, upon optional redemption, upon
declaration or otherwise; (iii) default by the Company in the
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performance of or breaches by the Company of any covenant or agreement in the
Indenture or under the Securities, other than those referred to in (i) or (ii),
where such default continues for 60 days after written notice from the Trustee
or the Holders of at least 25% in principal amount of the outstanding
Securities; (iv) (a) failure by the Company or any of its Subsidiaries to pay,
in accordance with its terms and when payable, any of the principal, premium, if
any, interest or additional amounts, if any, on any Debt (including the
Securities, other than the Securities, , if any, with respect to which the
failure to pay principal, premium, if any, interest or additional interest is
also an Event of Default under clauses (i), (ii) or both) having, in the
aggregate, a then outstanding principal amount in excess of $50,000,000, at the
later of final maturity or the expiration of any applicable grace period or (b)
acceleration of the maturity of Debt in an aggregate principal amount in excess
of $50,000,000, if that acceleration results from a default under the instrument
giving rise to or securing such Debt; or (v) certain events of bankruptcy,
insolvency or reorganization of the Company.
If an Event of Default described in clauses (i), (ii), (iii) and (iv)
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least 25% in outstanding principal amount of the Securities by notice to
the Company and the Trustee, may, and the Trustee at the request of such Holders
shall, declare the principal of, premium, if any, and accrued and unpaid
interest, if any, on all the Securities to be due and payable. Upon such a
declaration, such principal, premium and accrued and unpaid interest shall be
immediately due and payable. If an Event of Default described in clause (v)
above occurs and is continuing, the principal of, premium, if any, and accrued
and unpaid interest on all the Securities will become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security satisfactory
to it. Subject to certain limitations, Holders of a majority in principal amount
of the Securities may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Securityholders notice of any continuing Default
or Event of Default (except a Default or Event of Default in payment of
principal of, premium, if any, or interest on any Security) if it determines in
good faith that withholding notice is in the interests of Securityholders.
12. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
13. No Recourse Against Others
An incorporator, director, officer, employee, Affiliate or stockholder, of
the Company, solely by reason of this status, shall not have any liability for
any obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by
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reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
14. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Security.
15. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
16. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
17. Governing Law
This Security shall be governed by, and construed in accordance with, the
laws of the State of New York.
The Company will furnish to any Securityholder upon written request and
without charge to the Securityholder a copy of the Indenture which has in it the
text of this Security. Requests may be made to:
The Black & Xxxxxx Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Treasurer
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_____________________________________________________
(Print or type assignee's name, address and zip code)
_________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ___________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date:____________________ Your Signature:___________________________
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
SEC Rule 17Ad-15.
In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is two years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
__ 1 acquired for the undersigned's own account, without transfer; or
__ 2 transferred to the Company; or
__ 3 transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act");
or
__ 4 transferred pursuant to an effective registration statement
under the Securities Act; or
__ 5 transferred pursuant to and in compliance with Regulation S
under the Securities Act; or
__ 6 transferred to an institutional "accredited investor" (as
defined in
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Rule 501(a)(1), (2), (3) or (7) under the Securities Act), that
has furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter appears
as Section 2.7 of the Indenture); or
__ 7 transferred pursuant to another available exemption from the
registration requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (5), (6) or
(7) is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act, such as the exemption provided by Rule 144
under such Act.
__________________________
Signature
Signature Guarantee:
______________________________ __________________________
(Signature must be guaranteed) Signature
________________________________________________________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
SEC Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
__________________________________________
Dated:
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Signature of
Amount of Amount of Principal Amount authorized
decrease in increase in of this Global signatory of
Principal Amount Principal Amount Security following Trustee or
Date of of this Global of this Global such decrease or Securities
Exchange Security Security increase Custodian
________ ________________ ________________ __________________ _____________
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EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Depository Legend, if applicable]
No. ____ Principal Amount $____________,
as revised by the Schedule of
Increases and Decreases in Global
Security attached hereto
CUSIP NO. _____________
ISIN: _____________
4 3/4% Senior Notes Due 2014
The Black & Xxxxxx Corporation, a Maryland corporation, promises to pay to
____________, or registered assigns, the principal sum of _______________
Dollars, as revised by the Schedule of Increases and Decreases in Global
Security attached hereto, on November 1, 2014.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Additional provisions of this Security are set forth on the other side of
this Security.
THE BLACK & XXXXXX CORPORATION
By:___________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York,
as Trustee, certifies that this
is one of the Securities referred
to in the Indenture.
By:
Authorized Signatory Date: October __, 2004
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[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
4 3/4% Senior Note Due 2014
1. Interest
The Black & Xxxxxx Corporation, a Maryland corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above.
The Company will pay interest semiannually on May 1 and November 1 of each
year commencing May 1, 2005. Interest on the Securities will accrue from the
most recent date to which interest has been paid on the Securities or, if no
interest has been paid, from October 18, 2004. The Company shall pay interest on
overdue principal or premium, if any (plus interest on such interest to the
extent lawful), at the rate borne by the Securities 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
By at least 10:00 a.m. (New York City time) on the date on which any
principal of or interest on any Security is due and payable, the Company shall
deposit with the Trustee or the Paying Agent money sufficient to pay such
principal, premium, if any, and/or interest when due. The Company will pay
interest (except Defaulted Interest) to the Persons who are registered Holders
of Securities at the close of business on the April 15 or October 15 next
preceding the interest payment date even if Securities are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Except as described in the succeeding two sentences, the
principal of, premium, if any, and interest on the Securities shall be payable
at the office or agency of the Company maintained for such purpose in The City
of New York, or at such other office or agency of the Company as may be
maintained for such purpose pursuant to Section 2.3 of the Indenture; provided,
however, that, at the option of the Company, each installment of interest may be
paid by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Note Register. Payments in respect of Securities
represented by a Global Security (including principal, premium, if any, and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. Payments in respect of
Securities represented by Definitive Securities (including principal, premium,
if any, and interest) held by a Holder of at least $1,000,000 aggregate
principal amount of Securities represented by Definitive Securities 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 15 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
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3. Paying Agent and Registrar
Initially, The Bank of New York (the "Trustee"), will act as Trustee,
Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice to any Securityholder. The Company or
any of its Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of October
18, 2004 (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "Indenture"), between the Company and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the "Act").
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms. In the event of any inconsistency between the terms of this
Security and the terms of the Indenture, the terms of the Indenture shall
control.
The Securities are general unsecured senior obligations of the Company,
including (a) $300,000,000 aggregate principal amount of Securities being
offered on the Issue Date (subject to Section 2.9 of the Indenture) and (b) any
Additional Securities. The Security is one of the Securities referred to in the
Indenture. The Initial Securities, Additional Securities and Exchange Securities
will be treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on, among other things: the incurrence of
certain liens and sale-leaseback transaction by the Company or its Subsidiaries
and consolidations, mergers and sales of assets of the Company.
5. Redemption
The Securities will be redeemable, in whole or in part, at any time, at the
option of the Company, upon not less than 30 and not more than 60 days prior
notice mailed by first-class mail to each Holder of Securities to be so redeemed
at such Xxxxxx's registered address, at a redemption price equal to the greater
of
o 100% of the principal amount of the Securities to be redeemed; or
o the sum of the present values of the remaining scheduled payments of
principal of and interest on the Securities to be redeemed, exclusive of
interest accrued to the redemption date, discounted to the redemption date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate (as defined below), plus 15 basis
points as calculated by an Independent Investment Banker;
plus, in either case, accrued and unpaid interest on the principal amount of the
Securities to be redeemed to the redemption date.
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For purposes of determining the optional redemption price, the following
definitions are applicable:
"Adjusted Treasury Rate" means, with respect to any redemption date for the
Securities,
o the yield, under the heading that represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication
that is published weekly by the Board of Governors of the Federal Reserve
System and that 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 Comparable
Treasury Issue (if no maturity is within three months before or after the
applicable maturity date, yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue shall be determined
and the Adjusted Treasury Rate shall be interpolated or extrapolated from
such yields on a straight line basis, rounding to the nearest month); or
o 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, 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 Adjusted Treasury Rate shall be calculated on the third business day
preceding the redemption date.
"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 such Securities.
"Comparable Treasury Price" means, with respect to any redemption date (1)
the average of five Reference Treasury Dealer Quotations obtained by the Trustee
for that redemption date, after excluding the highest and lowest of such
reference Treasury Dealer Quotations; or (2) if the Trustee obtains fewer than
five such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations obtained by the Trustee.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means (1) X.X. Xxxxxx Securities Inc., Banc of
America Securities LLC, Citigroup Global Markets Inc. (or their successors);
provided, however, that if any of the foregoing shall cease to be a primary U.S.
government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary
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Treasury Dealer; and (2) any other Primary Treasury Dealer appointed by the
Trustee in consultation with the Company.
"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 for
the Securities, 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.
In the case of any partial redemption, selection of the Securities for
redemption will be made by the Trustee not more than 60 days prior to the
redemption date and by such method as the Trustee shall deem to be fair and
appropriate (and in such manner as complies with applicable legal requirements)
provided that (i) Securities and portions thereof that the Trustee selects shall
be in amounts of $1,000 or an integral multiple of $1,000 and (ii) no such
partial redemption shall reduce the portion of the principal amount of a
Security not redeemed to less than $1,000. If any Security is to be redeemed in
part only, the notice of redemption relating to such Security shall state the
portion of the principal amount thereof to be redeemed. A new Security in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Security. On and
after the redemption date, interest will cease to accrue on Securities or
portions thereof called for redemption as long as the Company has deposited with
the Trustee or with a Paying Agent (or, if applicable, segregated and held in
trust) money sufficient to pay the redemption price of, and accrued interest on,
all the Securities which are to be redeemed on such date.
6. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations of
principal amount of $1,000 and whole multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not (A) issue, register the transfer of or
exchange any Security during a period beginning at the opening of 15 days before
the day of any selection of Securities for redemption and ending at the close of
business on the day of selection, (B) 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, or (C) register the
transfer of or to exchange a Security between a record date and the next
succeeding interest payment date.
7. Persons Deemed Owners
The registered Holder of this Security will be treated as the owner of it
for all purposes.
8. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company at
its request unless an
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abandoned property law designates another Person. After any such payment,
Holders entitled to the money must look only to the Company and not to the
Trustee for payment.
9. Defeasance
Subject to certain conditions set forth in the Indenture, the Company at
any time may terminate some or all of its obligations under the Securities and
the Indenture if the Company deposits with the Trustee money or U.S. Government
Securities for the payment of principal, premium, if any, and interest on the
Securities to redemption or maturity, as the case may be.
10. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended with the written consent of the Holders of at
least a majority in principal amount of the then outstanding Securities and (ii)
any default (other than with respect to nonpayment or in respect of a provision
that cannot be amended without the written consent of each Securityholder
affected) or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in principal amount of the then outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Securityholder, the Company and the Trustee may amend the
Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article IV of the Indenture, or to add
guarantees with respect to the Securities, or to secure the Securities, or to
add additional covenants of the Company, or surrender rights and powers
conferred on the Company, or to comply with any request of the SEC in connection
with qualifying the Indenture under the Act, or to make any change that does not
adversely affect the rights of any Securityholder.
11. Defaults and Remedies
Under the Indenture, Events of Default include (i) default in any payment
of interest or additional interest on any Security when due, continued for 30
days; (ii) default in the payment of principal or premium, if any, on any
Security when due at its Stated Maturity, upon optional redemption, upon
declaration or otherwise; (iii) default by the Company in the performance of or
breaches by the Company of any covenant or agreement in the Indenture or under
the Securities, other than those referred to in (i) or (ii), where such default
continues for 60 days after written notice from the Trustee or the Holders of at
least 25% in principal amount of the outstanding Securities; (iv) (a) failure by
the Company or any of its Subsidiaries to pay, in accordance with its terms and
when payable, any of the principal, premium, if any, interest or additional
amounts, if any, on any Debt (including the Securities, other than the
Securities, if any, with respect to which the failure to pay principal, premium,
if any, interest or additional interest is also an Event of Default under
clauses (i), (ii) or both) having, in the aggregate, a then outstanding
principal amount in excess of $50,000,000, at the later of final maturity or the
expiration of any applicable grace period or (b) acceleration of the maturity of
Debt in an aggregate principal amount in excess of $50,000,000, if that
acceleration results from a default under the instrument giving rise to or
securing such Debt; or (v) certain events of bankruptcy, insolvency or
reorganization of the Company.
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If an Event of Default described in clauses (i), (ii), (iii) and (iv)
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least 25% in outstanding principal amount of the Securities by notice to
the Company and the Trustee, may, and the Trustee at the request of such Holders
shall, declare the principal of, premium, if any, and accrued and unpaid
interest, if any, on all the Securities to be due and payable. Upon such a
declaration, such principal, premium and accrued and unpaid interest shall be
immediately due and payable. If an Event of Default described in clause (v)
above occurs and is continuing, the principal of, premium, if any, and accrued
and unpaid interest on all the Securities will become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default or Event of
Default (except a Default or Event of Default in payment of principal of,
premium, if any, or interest on any Security) if it determines in good faith
that withholding notice is in the interests of Securityholders.
12. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
13. No Recourse Against Others
An incorporator, director, officer, employee, Affiliate or stockholder of
the Company, solely by reason of this status, shall not have any liability for
any obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
14. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Security.
15. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT
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TEN (=joint tenants with rights of survivorship and not as tenants in common),
CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
16. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
17. Governing Law
This Security shall be governed by, and construed in accordance with, the
laws of the State of New York without giving effect to conflicts of laws
principles thereof.
The Company will furnish to any Securityholder upon written request and
without charge to the Securityholder a copy of the Indenture which has in it the
text of this Security. Requests may be made to:
The Black & Xxxxxx Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Treasurer
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_____________________________________________________
(Print or type assignee's name, address and zip code)
_________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: ____________________ Your Signature ___________________________
Signature Guarantee: ___________________________________________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
SEC Rule 17Ad-15.
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
Signature of
Amount of Amount of Principal Amount authorized
decrease in increase in of this Global signatory of
Principal Amount Principal Amount Security following Trustee or
Date of of this Global of this Global such decrease or Securities
Exchange Security Security increase Custodian
________ ________________ ________________ __________________ _____________
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