EXHIBIT 4.7
================================================================================
FOURTH SUPPLEMENTAL INDENTURE
AMONG
XXXXXXXXXXX INTERNATIONAL, INC.
XXXXXXXXXXX INTERNATIONAL LTD.
AND
THE BANK OF NEW YORK
AS TRUSTEE
----------
DATED AS OF
JUNE 26, 2002
TO INDENTURE DATED AS OF MAY 17, 1996
----------
================================================================================
TABLE OF CONTENTS
ARTICLE ONE AMENDMENTS TO THE INDENTURE...........................................................................2
SECTION 101 Applicability of Amendments........................................................................2
SECTION 102 Definitions........................................................................................3
SECTION 103 Notices............................................................................................3
SECTION 104 Additional Events of Default.......................................................................3
SECTION 105 Trustee Matters....................................................................................5
SECTION 106 Defeasance and Covenant Defeasance.................................................................5
SECTION 107 Guarantee..........................................................................................5
ARTICLE TWO SECURITIES TO WHICH ARTICLE ONE APPLICABLE...........................................................10
SECTION 201 Securities to which Article One Applicable........................................................10
ARTICLE THREE CONVERSION RIGHTS..................................................................................10
SECTION 301 Conversion Rights.................................................................................10
ARTICLE FOUR MISCELLANEOUS PROVISIONS............................................................................11
SECTION 401 Integral Part.....................................................................................11
SECTION 402 General Definitions...............................................................................11
SECTION 403 Adoption, Ratification and Confirmation...........................................................11
SECTION 404 Trust Indenture Act Controls......................................................................11
SECTION 405 Governing Law.....................................................................................11
SECTION 406 Severability......................................................................................11
SECTION 407 Counterpart Originals.............................................................................12
SECTION 408 Successors........................................................................................12
SECTION 409 Table of Contents, Headings, etc..................................................................12
SECTION 410 Benefit of Fourth Supplemental Indenture..........................................................12
SECTION 411 Acceptance by Trustee.............................................................................12
-i-
THIS
FOURTH SUPPLEMENTAL INDENTURE, dated as of June 26, 2002, among
Xxxxxxxxxxx International, Inc., a Delaware corporation (the "Company"),
Xxxxxxxxxxx International Ltd., a Bermuda exempted company ("Guarantor"), and
The Bank of
New York (as successor in interest to Bank of Montreal Trust
Company) (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of May 17, 1996, as supplemented by the First
Supplemental Indenture thereto, dated as of May 27, 1998, the Second
Supplemental Indenture thereto, dated as of June 30, 2000 (the "Second
Supplemental Indenture"), and the Third Supplemental Indenture thereto, dated as
of November 16, 2001 (the "Third Supplemental Indenture", and such indenture as
so supplemented, the "Indenture"), providing for the issuance from time to time
of one or more series of the Company's Securities; and
WHEREAS, the Company has, in accordance with an Officer's Certificate
dated as of May 28, 1996, previously issued $200 million original aggregate
principal amount of its 7 1/4% Notes due May 15, 2006 (the "7 1/4% Notes"); and
WHEREAS, the Company has, in accordance with the Second Supplemental
Indenture, previously issued $910 million aggregate original principal amount of
its Zero Coupon Convertible Debentures due June 30, 2020 (the "Zero Coupon
Debentures"); and
WHEREAS, the Company has, in accordance with the Third Supplemental
Indenture, previously issued $350 million aggregate original principal amount of
its 6 5/8% Notes due 2011 (the "6 5/8% Notes"); and
WHEREAS, pursuant to the Agreement and Plan of Merger dated as of May
8, 2002 (the "Merger Agreement") among the Guarantor, Xxxxxxxxxxx U.S. Holdings,
L.L.C., a Delaware limited liability company and an indirect, wholly owned
subsidiary of the Guarantor, Xxxxxxxxxxx Merger Inc., a Delaware corporation and
an indirect, wholly owned subsidiary of the Guarantor ("Sub"), and the Company,
Sub has agreed to merge with and into the Company (the "Merger"), with the
Company being the surviving corporation in the Merger, following which the
Company will be an indirect, wholly owned subsidiary of the Guarantor; and
WHEREAS, in connection with such reorganization, the Guarantor has
determined that it will be in the best interests of and beneficial to the
Guarantor to enter into this
Fourth Supplemental Indenture for the purposes of
providing a guarantee of the 7 1/4% Notes, the Zero Coupon Debentures and the
6 5/8% Notes in accordance with the terms of this
Fourth Supplemental Indenture;
and
WHEREAS, pursuant to the Merger Agreement, as of the effective time of
the Merger (the "Effective Time"), each outstanding share of common stock of the
Company ("Company Common Stock") shall be converted into the right to receive
one validly issued, fully paid and nonassessable common share of the Guarantor
("Guarantor Common Shares"); and
WHEREAS, pursuant to Section 1511 of the Indenture, as a result of the
Merger, the Company is required to execute and deliver to the Trustee a
supplemental indenture providing (i)
that the Zero Coupon Debentures shall be convertible into Guarantor Common
Shares and (ii) for adjustments of the Conversion Rate which shall be as nearly
equivalent as may be practicable to the adjustments provided for in Article
FIFTEEN of the Indenture; and
WHEREAS, Section 901(9) of the Indenture permits the execution of
supplemental indentures without the consent of any Holders to make provision
with respect to the requirements of Article FIFTEEN of the Indenture; and
WHEREAS, Sections 901(2) and 901(3) of the Indenture permit the
execution of supplemental indentures without the consent of any Holders to add
any additional Events of Default with respect to, and to add to the covenants of
the Company for the benefit of, all or any series of Securities; and
WHEREAS, Section 901(5) of the Indenture permits the execution of
supplemental indentures without the consent of any Holders to add to, change or
eliminate any provisions of the Indenture in respect of one or more series of
Securities; provided, that any such change or elimination does not adversely
affect in any material respect any outstanding Security of any series created
prior to the execution of such supplemental indenture; and
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this
Fourth Supplemental Indenture to supplement and amend the Indenture
in certain respects; and
WHEREAS, all things necessary have been done to make this
Fourth
Supplemental Indenture a valid agreement of the Company and the Guarantor, in
accordance with its terms.
NOW THEREFORE:
In consideration of the premises provided for herein, the Company, the
Guarantor and the Trustee mutually covenant and agree as follows:
ARTICLE ONE
AMENDMENTS TO THE INDENTURE
SECTION 101 Applicability of Amendments.
The amendments contained in this Article ONE of this
Fourth Supplemental
Indenture shall apply only to any series of Securities issued under the
Indenture which have specifically been made subject to such amendments, and not
to any other series of Securities issued under the Indenture, and any covenants
provided in this Article ONE of this
Fourth Supplemental Indenture are expressly
being included solely for the benefit of such Securities and not for the benefit
of any other series of Securities issued under the Indenture. These amendments
shall be effective for so long as there remain Outstanding any Securities of a
series to which the provisions of this Article ONE apply.
-2-
SECTION 102 Definitions.
Section 101 of the Indenture is hereby amended, subject to Section 201 of this
Fourth Supplemental Indenture, by inserting in their appropriate alphabetical
positions, the following additional definitions:
"Bankruptcy Law" shall mean the United States Bankruptcy Code, 11
U.S.C. Section 101 et seq., any successor thereto and any other law, rule or
regulation, applicable in the premises, providing for or with respect to the
liquidation, dissolution, marshaling of assets and liabilities, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment, rehabilitation or relief of debtors or
any of their respective assets or liabilities.
"Guarantees" shall have the meaning specified in Section 1801 hereof.
"Guarantor" shall mean Xxxxxxxxxxx International Ltd., a Bermuda
exempted company, until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Guarantor" shall
mean such successor Person.
"Indenture Obligations" shall have the meaning specified in Section
1801 hereof.
"6 5/8% Notes" shall mean the 6 5/8% Notes due 2011 of the Company,
issued and Outstanding from time to time under this Indenture.
"7 1/4% Notes" shall mean the 7 1/4% Notes due May 15, 2006 of the
Company, issued and Outstanding from time to time under this Indenture.
"Zero Coupon Debentures" shall mean the Zero Coupon Convertible
Debentures due June 30, 2020 of the Company, issued and Outstanding from time to
time under this Indenture.
SECTION 103 Notices.
Section 105 of the Indenture is hereby amended, subject to Section 201 of this
Fourth Supplemental Indenture, by (a) deleting the period following existing
subsection (ii) thereof and inserting in its place ", or", and (b) adding the
following subsection (3) after said existing subsection (2):
"(3) the Guarantor by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Guarantor addressed to
it at: Xxxxxxxxxxx International Ltd., c/o Weatherford International, Inc., 000
Xxxx Xxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxx 00000, to the attention of its
Treasurer, or at any other address previously furnished in writing to the
Trustee by the Guarantor."
SECTION 104 Additional Events of Default.
Section 501 of the Indenture is hereby amended, subject to Section 201 of this
Fourth Supplemental Indenture, by (a) inserting in existing subsections (4) and
(7) thereof, following the
-3-
words "to the Company" each time said words appear therein, the words "and the
Guarantor", (b) adding the following subsections (8), (9), (10) and (11) after
existing subsection (7), and (c) redesignating existing subsection (8) as
subsection (12):
"(8) default in the performance, or breach, of any covenant or warranty
of the Guarantor in this Indenture, and continuation of such default or breach
for a period of 90 days after there has been given, by registered or certified
mail, to the Company and the Guarantor by the Trustee or to the Company and the
Guarantor and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(9) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Guarantor in an involuntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Guarantor as bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Guarantor under any applicable Federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Guarantor or of any substantial part of the property of
the Guarantor, or ordering the winding up or liquidation of its affairs, and the
continuation of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 90 consecutive days; or
(10) the commencement by the Guarantor of a voluntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law for the relief of debtors or of any other
case or proceeding to be adjudicated as bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the Guarantor in
an involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law for the relief of
debtors or the commencement of any bankruptcy or insolvency case or proceeding
against the Guarantor, or the filing by the Guarantor of a petition or answer or
consent seeking reorganization, arrangement, adjustment or composition of or in
respect of the Guarantor under any applicable Federal or state law, or the
consent by the Guarantor to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Guarantor or of any substantial part of
the property of the Guarantor, or the making by the Guarantor of an assignment
for the benefit of creditors, or the admission by the Guarantor in writing of
its inability to pay its debts generally as they become due, or the taking of
corporate action by the Guarantor in furtherance of any such action; or
(11) the Guarantee in respect of the Securities of that series ceases
to be in full force and effect or becomes unenforceable or invalid or is
declared null and void (other than in accordance with the terms of such
Guarantee) or the Guarantor denies or disaffirms its obligations under such
Guarantee; or"
-4-
SECTION 105 Trustee Matters.
Section 605 of the Indenture is hereby amended, subject to Section 201 of this
Fourth Supplemental Indenture, by adding the following sentence at the end of
Section 605:
"The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to Sections 608 and 613, may otherwise deal with the Guarantor with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent."
SECTION 106 Defeasance and Covenant Defeasance.
Article THIRTEEN of the Indenture is hereby amended, subject to Section 201 of
this Fourth Supplemental Indenture, by adding the following Section 1307 after
existing Section 1306:
"SECTION 1307 Effects of Defeasance on Guarantor.
Upon any defeasance in accordance with Section 1302 hereof of the
Securities of a series to which this Section 1307 has been made applicable, the
Guarantor shall be discharged from its obligations hereunder in respect of the
Securities of such series to the same extent and subject to the same conditions
as the Company is released from its obligations hereunder in respect of the
Securities of such series. Upon any covenant defeasance in accordance with
Section 1303 hereof of the Securities of a series to which this Section 1307 has
been made applicable, the Guarantor shall be discharged from its obligations
under Section 1905(a) hereof in respect of the Securities of such series to the
same extent and subject to the same conditions as the Company is released from
its obligations in respect of the Securities of such series under Section 801
hereof."
SECTION 107 Guarantee.
The Indenture is hereby amended, subject to Section 201 of this Fourth
Supplemental Indenture, by adding the following Article NINETEEN to the
Indenture following existing Article EIGHTEEN:
"ARTICLE NINETEEN
GUARANTEES OF SECURITIES
SECTION 1901 Unconditional Guarantees.
(a) For value received, the Guarantor hereby fully,
irrevocably, unconditionally and absolutely guarantees to the Holders
of Securities of each series to which this Article NINETEEN has been
made applicable and to the Trustee the due and punctual payment of the
principal of, and premium, if any, and interest on such Securities,
Liquidated Damages, if any, and all other amounts due and payable under
this Indenture and such Securities by the Company to the Trustee or
such Holders (including, without limitation, all costs and expenses
(including reasonable legal fees and disbursements) incurred by the
Trustee or such Holders in connection with the enforcement of this
Indenture and the
-5-
Guarantees) (collectively, the 'Indenture Obligations'), when and as
such principal, premium, if any, interest, Liquidated Damages, if any,
and other amounts shall become due and payable, whether at the Stated
Maturity, upon redemption or by declaration of acceleration or
otherwise, according to the terms of such Securities and this
Indenture. The guarantees by the Guarantor set forth in this Article
NINETEEN are referred to herein as the 'Guarantees'. Without limiting
the generality of the foregoing, the Guarantor's liability shall extend
to all amounts that constitute part of the Indenture Obligations and
would be owed by the Company to the Trustee or such Holders under this
Indenture and such Securities but for the fact that they are
unenforceable, reduced, limited, impaired, suspended or not allowable
due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
(b) Failing payment when due of any amount guaranteed pursuant
to the Guarantees, for whatever reason, the Guarantor will be obligated
to pay the same immediately to the Trustee, without set-off or
counterclaim or other reduction whatsoever (whether for taxes,
withholding or otherwise). Each Guarantee hereunder is intended to be a
general, unsecured, senior obligation of the Guarantor and will rank
pari passu in right of payment with all indebtedness of the Guarantor
that is not, by its terms, expressly subordinated in right of payment
to the Guarantee of the Guarantor. The Guarantor hereby agrees that, to
the fullest extent permitted by applicable law, its obligations
hereunder shall be full, irrevocable, unconditional and absolute,
irrespective of the validity, regularity or enforceability of such
Securities, the Guarantees or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any such Holder with
respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or
equitable discharge or defense of the Guarantor. The Guarantor hereby
agrees that in the event of a default in payment of the principal of,
or premium, if any, or interest on such Securities, or Liquidated
Damages, if any, or any other amounts payable under this Indenture and
such Securities by the Company to the Trustee or the Holders thereof,
whether at the Stated Maturity, upon redemption or by declaration of
acceleration or otherwise, legal proceedings may be instituted by the
Trustee on behalf of such Holders or, subject to Section 5.06 hereof,
by such Holders, on the terms and conditions set forth in this
Indenture, directly against the Guarantor to enforce the Guarantees
without first proceeding against the Company.
(c) To the fullest extent permitted by applicable law, the
obligations of the Guarantor under this Article NINETEEN shall be as
aforesaid full, irrevocable, unconditional and absolute and shall not
be impaired, modified, discharged, released or limited by any
occurrence or condition whatsoever, including, without limitation, (i)
any compromise, settlement, release, waiver, renewal, extension,
indulgence or modification of, or any change in, any of the obligations
and liabilities of the Company or the Guarantor contained in any of
such Securities or this Indenture, (ii) any impairment, modification,
release or limitation of the liability of the Company, the Guarantor or
any of their estates in bankruptcy, or any remedy for the enforcement
thereof, resulting from the operation of any present or future
provision of any applicable Bankruptcy Law, as amended, or other
statute or from the decision of any court, (iii) the assertion or
exercise by the Trustee or any such Holder of any rights or remedies
under any of such Securities
-6-
or this Indenture or their delay in or failure to assert or exercise
any such rights or remedies, (iv) the assignment or the purported
assignment of any property as security for any of such Securities,
including all or any part of the rights of the Company or the Guarantor
under this Indenture, (v) the extension of the time for payment by the
Company or the Guarantor of any payments or other sums or any part
thereof owing or payable under any of the terms and provisions of any
of such Securities or this Indenture or of the time for performance by
the Company or the Guarantor of any other obligations under or arising
out of any such terms and provisions or the extension or the renewal of
any thereof, (vi) the modification or amendment (whether material or
otherwise) of any duty, agreement or obligation of the Company or the
Guarantor set forth in this Indenture, (vii) the voluntary or
involuntary liquidation, dissolution, sale or other disposition of all
or substantially all of the assets, marshaling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment, rehabilitation or relief of, or other similar proceeding
affecting, the Company or the Guarantor or any of their respective
assets, or the disaffirmance of any of such Securities, the Guarantees
or this Indenture in any such proceeding, (viii) the release or
discharge of the Company or the Guarantor from the performance or
observance of any agreement, covenant, term or condition contained in
any of such instruments by operation of law, (ix) the unenforceability
of any of such Securities, the Guarantees or this Indenture, (x) any
change in the name, business, capital structure, corporate existence,
or ownership of the Company or the Guarantor, or (xi) any other
circumstance which might otherwise constitute a defense available to,
or a legal or equitable discharge of, a surety or the Guarantor.
(d) To the fullest extent permitted by applicable law, the
Guarantor hereby (i) waives diligence, presentment, demand of payment,
notice of acceptance, filing of claims with a court in the event of the
merger, insolvency or bankruptcy of the Company or the Guarantor, and
all demands and notices whatsoever, (ii) acknowledges that any
agreement, instrument or document evidencing the Guarantees may be
transferred and that the benefit of its obligations hereunder shall
extend to each holder of any agreement, instrument or document
evidencing the Guarantees without notice to them and (iii) covenants
that its Guarantee will not be discharged except by complete
performance of the Guarantees. To the fullest extent permitted by
applicable law, the Guarantor further agrees that if at any time all or
any part of any payment theretofore applied by any Person to any
Guarantee is, or must be, rescinded or returned for any reason
whatsoever, including without limitation, the insolvency, bankruptcy or
reorganization of the Guarantor, such Guarantee shall, to the extent
that such payment is or must be rescinded or returned, be deemed to
have continued in existence notwithstanding such application, and the
Guarantees shall continue to be effective or be reinstated, as the case
may be, as though such application had not been made.
(e) The Guarantor shall be subrogated to all rights of the
Holders and the Trustee against the Company in respect of any amounts
paid by the Guarantor pursuant to the provisions of this Indenture;
provided, however, that the Guarantor shall not be entitled to enforce
or to receive any payments arising out of, or based upon, such right of
subrogation with respect to any of such Securities until all of such
Securities and the Guarantees thereof shall have been indefeasibly paid
in full or discharged.
-7-
(f) A director, officer, employee or stockholder, as such, of
the Guarantor shall not have any liability for any obligations of the
Guarantor under this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation.
(g) No failure to exercise and no delay in exercising, on the
part of the Trustee or the Holders, any right, power, privilege or
remedy under this Article NINETEEN and the Guarantees shall operate as
a waiver thereof, nor shall any single or partial exercise of any
rights, power, privilege or remedy preclude any other or further
exercise thereof, or the exercise of any other rights, powers,
privileges or remedies. The rights and remedies herein provided for are
cumulative and not exclusive of any rights or remedies provided in law
or equity. Nothing contained in this Article NINETEEN shall limit the
right of the Trustee or the Holders to take any action to accelerate
the maturity of such Securities pursuant to Article Five or to pursue
any rights or remedies hereunder or under applicable law.
SECTION 1902 Execution and Delivery of Notation of Guarantees.
To further evidence the Guarantees, the Guarantor hereby agrees that a
notation of such Guarantees may be endorsed on each Security of a series to
which this Article NINETEEN has been made applicable authenticated and delivered
by the Trustee and executed by either manual or facsimile signature of an
officer of the Guarantor.
The Guarantor hereby agrees that its Guarantees shall remain in full
force and effect notwithstanding any failure to endorse on any such Security a
notation relating to the Guarantee thereof.
If an officer of the Guarantor whose signature is on this Indenture or
a Security no longer holds that office at the time the Trustee authenticates
such Security or at any time thereafter, the Guarantor's Guarantee of such
Security shall be valid nevertheless.
The delivery by the Trustee of any Security of a series to which this
Article NINETEEN has been made applicable, after the authentication thereof
under this Indenture, shall constitute due delivery of the Guarantee set forth
in this Indenture on behalf of the Guarantor.
SECTION 1903 Reports by Guarantor.
In addition to the certificates delivered to the Trustee pursuant to
Section 1904, the Guarantor shall file with the Trustee and the Commission, and
transmit to Holders of Outstanding Securities of each series to which this
Article NINETEEN has been made applicable, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto; provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, shall be filed with the Trustee within 15 days after the same
is so required to be filed with the Commission.
-8-
SECTION 1904 Statement by Officer as to Default.
The Guarantor shall, so long as any Securities of a series to which
this Article NINETEEN has been made applicable are Outstanding, deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company
beginning in 2002, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Guarantor's compliance with all conditions and covenants under
this Indenture. For purposes of this Section 1904, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture. Such certificate shall comply with Section 314(a)(4) of the
Trust Indenture Act.
SECTION 1905 Limitations on Merger and Consolidation of Guarantor.
(a) The Guarantor shall, so long as any Securities to which
this Article NINETEEN has been made applicable are Outstanding, not
consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any
other Person, unless:
(1) The Person formed by such consolidation or into
which the Guarantor is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Guarantor substantially as an entirety shall be
an exempted company, corporation, partnership, limited
liability company or trust and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the obligations
of the Guarantor hereunder;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
(3) the Guarantor has delivered to the Trustee an
officers' certificate of the Guarantor and an Opinion of
Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture
comply with this Section 1905(a) and that all conditions
precedent herein provided for relating to such transaction
have been complied with.
(b) Upon any consolidation of the Guarantor with, or merger of
the Guarantor into, any other Person or any conveyance, transfer or
lease of the properties and assets of the Guarantor substantially as an
entirety to any other Person in accordance with Section 1905(a), the
successor Person formed by such consolidation or into which the
Guarantor is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every
right and power of, the Guarantor under this Indenture with the same
effect as if such successor Person had been named as the Guarantor
herein, and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants under this
Indenture and such Securities and coupons and may liquidate and
dissolve."
-9-
ARTICLE TWO
SECURITIES TO WHICH ARTICLE ONE APPLICABLE
SECTION 201 Securities to which Article One Applicable.
The Company and Guarantor hereby agree in accordance with Sections 901(2),
901(3) and 901(5) of the Indenture that the amendments to the Indenture set
forth in Article ONE of this Fourth Supplemental Indenture are hereby made
applicable to the 7 1/4% Notes, the Zero Coupon Debentures and the 6 5/8% Notes,
and only to the Securities of these specified series.
ARTICLE THREE
CONVERSION RIGHTS
SECTION 301 Conversion Rights.
The Company and Guarantor hereby agree in accordance with Section 1511 of the
Indenture that the holder of each Zero Coupon Debenture outstanding at the
Effective Time shall have the right to convert such Zero Coupon Debenture into
the number of Guarantor Common Shares equal to the number of shares of Company
Common Stock deliverable upon conversion of such Zero Coupon Debenture
immediately prior to the effective time of the Merger. Guarantor hereby agrees
in accordance with Section 1511 of the Indenture to make any subsequent
adjustments of the Conversion Rate which shall be as nearly equivalent as may be
practicable to the adjustments provided for in Article FIFTEEN of the Indenture,
and for such purpose (a) from and after the effective time of the Merger all
references in Article FIFTEEN of the Indenture to "Common Stock", or to actions
taken by or in respect of, or other circumstances existing with respect to, the
Company (in respect of the Common Stock or otherwise) that require (or exempt
the Company from making any) adjustment of the number of shares of such Common
Stock issuable upon conversion of Zero Coupon Debentures and/or the Conversion
Rate, or change of the securities or other property into which Zero Coupon
Debentures shall be convertible shall, insofar as the same relate to or affect
the convertibility, or conversion, of Zero Coupon Debentures, or the terms
thereof, or the securities or other property into which Zero Coupon Debentures
shall be convertible, be deemed to mean and refer to Guarantor Common Shares or
actions taken by or in respect of, or circumstances existing with respect to,
the Guarantor (in respect of the Guarantor Common Shares or otherwise), as the
case may be, mutatis mutandis; (b) the references to the Company in each proviso
in Section 1502, the third sentence of Section 1506(b), clause (y) of the first
sentence of Section 1506(d)(2), Section 1508, and clauses (1), (2) and (3) of
Section 1510, shall be deemed to be references to the Guarantor, mutatis
mutandis; (c) the Guarantor shall assume the obligations of the Company under
Section 1503, and its covenants in Section 1505, the fourth sentence of Section
1506(b), and the last independent clause of the penultimate sentence of Section
1506(f), and shall join with the Company in the supplemental indenture referred
to in the first paragraph of Section 1511, of the Indenture; and (d)(i) the term
"Board of Directors" as used in Sections 1506(a),1506(c), 1506(d)(2), 1506(d)(3)
and 1506(e) shall be deemed to mean and refer to the Guarantor's board of
directors, and the Company shall file with the Trustee a certified copy of their
resolution containing any determination made pursuant
-10-
thereto, and (ii) the Guarantor shall have the rights (and its board of
directors shall make the determinations) provided for in Sections 1506(f) and
1513 of the Indenture.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 401 Integral Part.
This Fourth Supplemental Indenture constitutes an integral part of the Indenture
to the extent provided in Section 201 hereof.
SECTION 402 General Definitions.
For all purposes of this Fourth Supplemental Indenture, capitalized terms used
herein without definition shall have the meanings specified in the Indenture.
SECTION 403 Adoption, Ratification and Confirmation.
The Indenture, as supplemented and amended by this Fourth Supplemental
Indenture, is in all respects hereby adopted, ratified and confirmed, and this
Fourth Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided. The provisions of this
Fourth Supplemental Indenture shall, subject to the terms hereof, supersede the
provisions of the Indenture to the extent the Indenture is inconsistent
herewith.
SECTION 404 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by operation of TIA Section 318(c), the imposed duties shall
control.
SECTION 405 Governing Law.
THIS FOURTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 406 Severability.
In case any provision in this Fourth Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall, to the fullest extent permitted by applicable law,
not in any way be affected or impaired thereby.
-11-
SECTION 407 Counterpart Originals.
The parties may sign any number of copies of this Fourth Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 408 Successors.
All agreements of the Company or the Guarantor in this Fourth Supplemental
Indenture shall bind its successors. All agreements of the Trustee in this
Fourth Supplemental Indenture shall bind its successors.
SECTION 409 Table of Contents, Headings, etc.
The table of contents, cross-reference table and headings of the Articles and
Sections of this Fourth Supplemental Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms or provisions hereof.
SECTION 410 Benefit of Fourth Supplemental Indenture.
Nothing in this Fourth Supplemental Indenture, express or implied, shall give to
any Person, other than the parties hereto, any Security Registrar, any Paying
Agent and their successors hereunder, and the Holders of Securities of any
series to which the amendments of the Indenture set forth in Article ONE hereof
have been made applicable, any benefit or any legal or equitable right, remedy
or claim under this Fourth Supplemental Indenture.
SECTION 411 Acceptance by Trustee.
The Trustee accepts the amendments to the Indenture effected by this Fourth
Supplemental Indenture and agrees to execute the trusts created by the Indenture
as hereby amended, but only upon the terms and conditions set forth in this
Fourth Supplemental Indenture and the Indenture. Without limiting the generality
of the foregoing, the Trustee assumes no responsibility for the correctness of
the recitals contained herein, which shall be taken as the statements of the
Company and the Guarantor and except as provided in the Indenture the Trustee
shall not be responsible or accountable in any way whatsoever for or with
respect to the validity or execution or sufficiency of this Fourth Supplemental
Indenture and the Trustee makes no representation with respect thereto.
-12-
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed as of the day and year first written
above.
XXXXXXXXXXX INTERNATIONAL, INC.
By: /s/ XXXX X. XXXXXX
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
XXXXXXXXXXX INTERNATIONAL LTD.
By: /s/ XXXX X. XXXXXX
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
THE BANK OF
NEW YORK
By: /s/ XXXXXXX X. XXXXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
-13-
