Exhibit 4.5
EXECUTION VERSION
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XXXXXX INTERNATIONAL INDUSTRIES, INCORPORATED
Issuer
7-1/8% Notes Due 2007
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INDENTURE
Dated as of February 19, 2002
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X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1)........................................................... 7.10
(a)(2)............................................................. 7.10
(a)(3)............................................................. N.A.
(a)(4)............................................................. N.A.
(b)................................................................ 7.08; 7.10
(c)................................................................ N.A.
311(a).............................................................. 7.11
(b)................................................................ 7.11
(c)................................................................ N.A.
312(a).............................................................. 2.05
(b)................................................................ N.A.
(c)................................................................ N.A.
313(a).............................................................. 7.06
(b)(1)............................................................. N.A.
(b)(2)............................................................. 7.06
(c)................................................................ 7.06
(d)................................................................ 7.06
314(a).............................................................. 10.04
(b)................................................................ N.A.
(c)(1)............................................................. 10.04
(c)(2)............................................................. 10.04
(c)(3)............................................................. N.A.
(d)................................................................ N.A.
(e)................................................................ 10.05
(f)................................................................ 4.09
315(a).............................................................. 7.01
(b)................................................................ 7.05; 10.02
(c)................................................................ 7.01
(d)................................................................ 7.01
(e)................................................................ 6.11
316(a).............................................................. 10.06
(a)(1)(A).......................................................... 6.05
(a)(1)(B).......................................................... 6.04
(a)(2)............................................................. N.A.
(b)................................................................ 6.07
317(a)(1)........................................................... 6.08
(a)(2)............................................................. 6.09
(b)................................................................ 2.04
318(a).............................................................. 10.01
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N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions .....................................................1
Section 1.02. Other Definitions................................................6
Section 1.03. Incorporation by Reference of Trust Indenture Act................6
Section 1.04. Rules of Construction............................................7
ARTICLE II
THE SECURITIES
Section 2.01. Form and Dating .................................................7
Section 2.02. Execution and Authentication.....................................8
Section 2.03. Registrar and Paying Agent.......................................8
Section 2.04. Paying Agent To Hold Money in Trust..............................9
Section 2.05. Securityholder Lists............................................10
Section 2.06. Transfer and Exchange...........................................10
Section 2.07. Replacement Securities..........................................10
Section 2.08. Outstanding Securities..........................................11
Section 2.09. Temporary Securities............................................11
Section 2.10. Cancelation ....................................................11
Section 2.11. Defaulted Interest..............................................12
Section 2.12. CUSIP Numbers ..................................................12
Section 2.13. Issuance of Additional Securities...............................12
ARTICLE III
REDEMPTION
Section 3.01. Notices to Trustee..............................................13
Section 3.02. Selection of Securities To Be Redeemed..........................13
Section 3.03. Notice of Redemption............................................14
Section 3.04. Effect of Notice of Redemption..................................15
Section 3.05. Deposit of Redemption Price.....................................15
Section 3.06. Securities Redeemed in Part.....................................15
ARTICLE IV
COVENANTS
Section 4.01. Payment of Securities...........................................15
Section 4.02. Maintenance of Office or Agency for Registration of
Transfer, Exchange and Payment of Securities ................16
Section 4.03. Appointment To Fill a Vacancy in the Office of Trustee..........16
Section 4.04. Provision as to Paying Agent....................................17
Section 4.05. Maintenance of Corporate Existence..............................18
Section 4.06. Limitation on Liens.............................................18
Section 4.07. Limitation on Sale and Leaseback Transactions...................20
Section 4.08. Compliance Certificate..........................................21
Section 4.09. Further Instruments and Acts....................................21
Section 4.10. SEC Reports ....................................................21
ARTICLE V
SUCCESSOR COMPANY
Section 5.01. When Company May Merge or Transfer Assets.......................22
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Events of Default...............................................23
Section 6.02. Acceleration ...................................................25
Section 6.03. Other Remedies .................................................26
Section 6.04. Waiver of Past Defaults.........................................26
Section 6.05. Control by Majority.............................................26
Section 6.06. Limitation on Suits.............................................26
Section 6.07. Rights of Holders to Receive Payment............................27
Section 6.08. Collection Suit by Trustee......................................27
Section 6.09. Trustee May File Proofs of Claim................................27
Section 6.10. Priorities .....................................................28
Section 6.11. Undertaking for Costs...........................................28
Section 6.12. Waiver of Stay or Extension Laws................................28
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ARTICLE VII
TRUSTEE
Section 7.01. Duties of Trustee...............................................29
Section 7.02. Rights of Trustee...............................................30
Section 7.03. Individual Rights of Trustee....................................31
Section 7.04. Trustee's Disclaimer............................................31
Section 7.05. Notice of Defaults..............................................31
Section 7.06. Reports by Trustee to Holders...................................31
Section 7.07. Compensation and Indemnity......................................32
Section 7.08. Replacement of Trustee..........................................33
Section 7.09. Successor Trustee by Merger.....................................34
Section 7.10. Eligibility; Disqualification...................................34
Section 7.11. Preferential Collection of Claims Against Company...............35
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01. Discharge of Liability on Securities; Defeasance................35
Section 8.02. Conditions to Defeasance........................................36
Section 8.03. Application of Trust Money......................................38
Section 8.04. Repayment to Company............................................38
Section 8.05. Indemnity for U.S. Government Obligations.......................38
Section 8.06. Reinstatement ..................................................38
ARTICLE IX
AMENDMENTS
Section 9.01. Without Consent of Holders......................................39
Section 9.02. With Consent of Holders.........................................39
Section 9.03. Compliance with Trust Indenture Act.............................41
Section 9.04. Revocation and Effect of Consents and Waivers...................41
Section 9.05. Notation on or Exchange of Securities...........................41
Section 9.06. Trustee To Sign Amendments......................................41
Section 9.07. Payment for Consent.............................................42
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ARTICLE X
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls...................................42
Section 10.02. Notices .......................................................42
Section 10.03. Communication by Holders with other Holders....................43
Section 10.04. Certificate and Opinion as to Conditions Precedent.............43
Section 10.05. Statements Required in Certificate or Opinion..................44
Section 10.06. When Securities Disregarded....................................44
Section 10.07. Rules by Trustee, Paying Agent and Registrar...................44
Section 10.08. Legal Holidays ................................................44
Section 10.09. Governing Law .................................................45
Section 10.10. No Recourse Against Others.....................................45
Section 10.11. Successors ....................................................45
Section 10.12. Multiple Originals.............................................45
Section 10.13. Table of Contents; Headings....................................45
Rule 144A/Regulation S Appendix
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INDENTURE dated as of February
19, 2002, between XXXXXX INTERNATIONAL
INDUSTRIES, INCORPORATED, a Delaware
corporation (the "Company"), and X.X. Xxxxxx
Trust Company, National Association, a
banking association organized under the laws
of the United States, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's 7-1/8%
Notes Due 2007.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS
"Additional Securities" means, 7-1/8% Notes Due 2007 issued from
time to time after the Issue Date under the terms of this Indenture (other than
pursuant to Section 2.06, 2.07, 2.09 or 3.06 of this Indenture and other than
Exchange Securities or Private Exchange Securities issued pursuant to an
exchange offer for other Securities outstanding under this Indenture).
"Affiliate" means, as applied to any Person, (i) any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) any Person who is a director
or officer (A) of such Person, (B) of any Subsidiary of such Person or (C) of
any Person described in clause (i) above. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Attributable Debt" means, as to any Sale and Leaseback Transaction,
at any date as of which the amount of which thereof is to be determined, the
total net amount of rent required to be paid under such lease during the
remaining primary term thereof, discounted from the respective due dates thereof
to such date at the rate of interest of the Securities. The net amount of rent
required to be paid under any such Sale and Leaseback Transaction for any such
period shall be the
aggregate amount of rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates and similar charges. In the case of
any lease which is terminable by the lessee upon the payment of a penalty, such
net amount shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board of
Directors.
"Business Day" means a day other than a Legal Holiday.
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Xxxxxx International Industries, Incorporated, a
Delaware corporation, until a successor replaces it and thereafter means the
successor and, for purposes of any provision contained herein and required by
the TIA, each other obligor on the Securities.
"Consolidated Net Tangible Assets" means total assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities and (b) all goodwill, trade names,
trademarks, patents, organization expenses and other like intangibles, all as
set forth on the most recent balance sheet of the Company and its consolidated
subsidiaries and computed in accordance with GAAP.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2
"GAAP" means generally accepted accounting principles in the United
States of America in effect from time to time, including those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements of pronouncements of
the Financial Accounting Standards Board or such other entity as are approved by
a significant segment of the accounting profession.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered on the Registrar's books.
"Indebtedness" of any Person at any date means all indebtedness or
obligations of such Person, as reflected on the balance sheet of such Person
prepared in accordance with GAAP, other than current trade liabilities incurred
in the ordinary course of business and payable in accordance with customary
practices.
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Issue Date" means February 19, 2002.
"Lien" means any mortgage, pledge, hypothecation, encumbrance, lien
or other security interest.
"Officer" means the Chairman of the Board, the Executive Chairman,
the Vice Chairman, the President, the Chief Executive Officer, the Chief
Financial Officer, any Executive Vice President, any Vice President, the
Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers
(in the case of the annual Officers' Certificate delivered pursuant to Section
4.08, at least one of such Officers shall be the principal executive officer,
principal financial officer or principal accounting officer of the Company) and
that complies with Sections 10.04 and 10.05 of this Indenture and is delivered
to the Trustee.
3
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee and that complies with Sections 10.04
and 10.05 of this Indenture and delivered to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"principal" of a Security means the principal of the Security plus
the premium, if any, payable on the Security which is due or overdue or is to
become due at the relevant time.
"Principal Subsidiary" means (a) each Subsidiary of the Company
existing on the Issue Date and (b) any Subsidiary created or acquired after the
Issue Date, including its Subsidiaries, which meets either of the following
conditions: (1) the Company and its other Subsidiaries' investments in and
advances to the Subsidiary exceeds 10% of the total assets of the Company and
its Subsidiaries consolidated as of the end of the most recently completed
fiscal year (for a proposed business combination to be accounted for as a
pooling of interests, this condition is also met when the number of common
shares exchanged by the Company exceeds 10% of its total common shares
outstanding at the date the combination is initiated) or (2) the Company and its
other Subsidiaries' proportionate share of the total assets (after intercompany
eliminations) of the Subsidiary exceeds 10% of the total assets of the Company
and its Subsidiaries consolidated as of the end of the most recently completed
fiscal year.
"Sale and Leaseback Transaction" means any arrangement with any
Person providing for the leasing by the Company or any Principal Subsidiary of
real or personal property that is to be sold or transferred by the Company or
such Principal Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Company or such Principal Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Initial Securities, the Exchange Securities,
the Private Exchange Securities and Additional Securities issued under this
Indenture.
4
"Securities Act" means the Securities Act of 1933, as amended.
"7.32% Notes" means the Company's 7.32% Senior Notes due 2007.
"Stated Maturity" means, with respect to any Security, the date
specified in such Security as the fixed date on which the final payment of
principal of such Security is due and payable.
"Subsidiary" means, with respect to any Person, (i) any corporation,
limited liability company, association or other business entity of which more
than 50% of the total voting power of shares of capital stock, entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof) and (ii) any partnership (a) the sole
general partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939 (15 X.X.X.xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Wholly-Owned Subsidiary" means a Subsidiary of the Company, all of
the Capital Stock of which (other than
5
directors' qualifying shares) is owned by the Company or another Wholly-Owned
Subsidiary.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
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"Agent Member"................................ Appendix
"Authenticating Agent"........................ Appendix
"Bankruptcy Law".............................. 6.01
"covenant defeasance option".................. 8.01(b)
"cross acceleration provision"................ 6.01
"Custodian"................................... 6.01
"Event of Default"............................ 6.01
"Global Security"............................. Appendix
"Initial Securities........................... Appendix
"legal defeasance option"..................... 8.01(b)
"Legal Holiday"............................... 10.08
"Paying Agent"................................ 2.03
"Private Exchange Securities"................. Appendix
"Registrar"................................... Appendix
"Successor Company"........................... 5.01
SECTION 1.03. 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 securityholder" 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 by the TIA by reference to another statute or defined by an SEC
rule have the meanings assigned to them by such definitions.
6
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "including" means including without limitation;
(4) "or" is not exclusive;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) 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 GAAP; and
(7) all references to the date the Securities were originally issued
shall refer to the Issue Date.
ARTICLE II
THE SECURITIES
SECTION 2.01. FORM AND DATING. (a) Provisions relating to the
Initial Securities, the Private Exchange Securities and the Exchange Securities
are set forth in the Rule 144A/Regulation S Appendix attached hereto (the
"Appendix") the terms and provisions of which are hereby incorporated in and
expressly made part of this Indenture. The Initial Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit 1 to
the Appendix, the terms and provisions of which are hereby incorporated in and
expressly made part of this Indenture. The Exchange Securities, the Private
Exchange Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A attached hereto, the terms and provisions
of which are hereby incorporated in and expressly made part of this Indenture.
The Securities may have notations, legends or endorsements required by law,
stock exchange rule, agreements to which the Company is subject, if any, or
usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). Each Security shall be dated the date of its
authentication.
7
The terms of the Securities set forth in the Appendix and Exhibit A are part of
the terms of this Indenture.
SECTION 2.02. EXECUTION AND AUTHENTICATION. Two Officers 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.
The Trustee shall authenticate and make available for delivery the
Securities as set forth in the Appendix.
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 such agent. An
Authenticating Agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.03. REGISTRAR AND PAYING AGENT. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange (the "Registrar") and an office or agency where Securities may
be presented for payment (the "Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. 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.
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 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
8
appropriate compensation therefore pursuant to Section 7.07. The Company or any
Wholly-Owned Subsidiary incorporated or organized within the United States of
America may act as Paying Agent, Registrar, co-registrar or transfer agent. The
Company may remove any Registrar or Paying Agent upon written notice to such
Registrar or Paying Agent and to the Trustee; PROVIDED, HOWEVER, that no such
removal shall become effective until (i) acceptance of an appointment by a
successor as evidenced by an appropriate agreement entered into by the Company
and such successor Registrar or Paying Agent, as the case may be, and delivered
to the Trustee or (ii) notification to the Trustee that the Trustee shall serve
as Registrar or Paying Agent until the appointment of a successor in accordance
with clause (i) above. The Paying Agent or the Registrar may resign as such upon
30 days' prior written notice to the Company and the Trustee; upon resignation
of any Paying Agent or Registrar, the Company shall appoint a successor Paying
Agent or Registrar, as the case may be, no later than 30 days thereafter and
shall provide notice in writing to the Trustee of such successor Paying Agent or
Registrar.
The Company initially appoints the Trustee as Registrar and Paying
Agent for the Securities.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. By the opening of
business (New York City time) on the day 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 Holders or the
Trustee all money held by such Paying Agent for the payment of principal of or
interest on the Securities and shall notify the Trustee 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 2.04, 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.
9
SECTION 2.05. 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. If the Trustee is not the
Registrar, 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.
SECTION 2.06. TRANSFER AND EXCHANGE. The Securities shall be issued
in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer and in compliance with the Appendix. When
a Security is presented to the Registrar or a co-registrar with a request to
register a transfer, the Registrar shall register the transfer as requested if
the requirements for this Indenture are met. When Securities are presented the
Securities shall be issued in registered form and shall be transferable only
upon the surrender of a Security for registration to transfer. When Securities
are presented to the Registrar or a co-registrar with a request to exchange them
for an equal principal amount of Securities of other denominations, the
Registrar shall make the exchange as requested if the same requirements are met.
SECTION 2.07. REPLACEMENT SECURITIES. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the Holder
satisfies any reasonable requirements of the Trustee. If required by the Trustee
or the Company, 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. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company under this Indenture.
The provisions of this Section 2.07 are exclusive and shall exclude
(to the extent lawful) all other rights and remedies with respect to replacement
or repayment of mutilated, lost, destroyed or wrongfully taken Securities.
10
SECTION 2.08. 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 cancelation and those described in this Section
2.08 as not outstanding. Subject to the provisions of Section 10.06, a Security
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a protected purchaser (as such term
is defined in Section 8-303 of the Uniform Commercial Code).
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or at Stated Maturity 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,
then on and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. TEMPORARY SECURITIES. Until definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities, in the
name of the Holder, and deliver them to the Holder in exchange for temporary
Securities representing an equal principal amount in authorized denominations.
Until so exchanged, the Holder of a temporary Security shall be in all respects
entitled to the same benefits as a Holder of definitive Securities.
SECTION 2.10. CANCELATION. The Company at any time may deliver
Securities to the Trustee for cancelation. 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
destroy in accordance with customary procedures (subject to the record retention
requirements of the Exchange Act) all Securities surrendered for registration of
transfer, exchange, payment or cancelation and deliver a certificate of such
destruction to the Company unless the Company directs the Trustee to deliver
canceled Securities to the Company. The
11
Company may not issue new Securities to replace Securities it has redeemed, paid
or delivered to the Trustee for cancelation. The Trustee shall not authenticate
Securities in place of canceled Securities other than pursuant to the terms of
this Indenture.
SECTION 2.11. DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Securities, the Company shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the Persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed (or upon the Company's failure to do so the Trustee shall fix
pursuant to a written instruction of Holders of at least a majority in principal
amount of the Securities) any such special record date and payment date to the
reasonable satisfaction of the Trustee, which specified record date shall not be
less than 10 days prior to the payment date for such defaulted interest, and
shall promptly mail or cause to be mailed to each Securityholder a notice that
states the special record date, the payment date and the amount of defaulted
interest to be paid.
SECTION 2.12. CUSIP NUMBERS. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use) and, if so, the Trustee shall
use "CUSIP" numbers in notices 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 and that reliance may be placed only on the other identification
numbers printed on the Securities, and no redemption shall be affected by any
defect in or omission of such numbers.
SECTION 2.13. ISSUANCE OF ADDITIONAL SECURITIES. The Company shall
be entitled to issue Additional Securities under this Indenture which shall have
identical terms as the Initial Securities issued on the Issue Date, other than
with respect to the date of issuance and, if appropriate, the issue price. The
Initial Securities issued on the Issue Date, any Additional Securities and all
Exchange Securities or Private Exchange Securities issued in exchange therefor
shall be treated as a single class for all purposes under this Indenture.
With respect to any Additional Securities, the Company shall set
forth in a resolution of the Board of Directors and an Officers' Certificate, a
copy of each which shall be delivered to the Trustee, the following information:
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(1) the aggregate principal amount of such Additional Securities to
be authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP number of such
Additional Securities; PROVIDED, HOWEVER, that no Additional Securities
may be issued unless such Additional Securities are fungible in all
respects for U.S. Federal income tax purposes with the Securities then
outstanding;
(3) whether such Additional Securities shall be Transfer Restricted
Securities and issued in the form of Initial Securities as set forth in
the Appendix to this Indenture or shall be issued in the form of Exchange
Securities as set forth in Exhibit A; and
(4) that the Company has complied with this Section 2.13.
ARTICLE III
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities as set forth in Exhibit 1
to the Appendix, it shall notify the Trustee in writing of the redemption date,
the principal of Securities to be redeemed and the paragraph of the Securities
pursuant to which the redemption will occur.
The Company shall give each notice to the Trustee provided for in
this Section at least 45 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If fewer than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by a method that complies with applicable
legal and securities exchange requirements, if any, and that the Trustee in its
sole discretion shall deem to be fair and appropriate and in accordance with
methods generally used at the time of selection by fiduciaries in similar
circumstances. The Trustee shall make the selection from outstanding Securities
not previously called
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for redemption. Securities and portions of them the Trustee selects shall be in
principal amounts of $1,000 or a whole multiple of $1,000. The Trustee may
select for redemption portions of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not more
than 60 days before a date for redemption of Securities, the Company shall mail
a notice of redemption by first-class mail to each Holder of Securities to be
redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) a description of how the redemption price will be calculated;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be redeemed,
the identification and principal amounts of the particular Securities to
be redeemed;
(6) that, unless the Company defaults in making such redemption
payment, interest on Securities (or portion thereof) called for redemption
ceases to accrue on and after the redemption date;
(7) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
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SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date). Failure to give
notice or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. By the opening of
business (New York City time) on the redemption date, the Company shall deposit
with the Paying Agent (or, if the Company or a Subsidiary is the Paying Agent,
shall segregate and hold in trust) money sufficient to pay the redemption price
of and accrued interest on all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which have been
delivered by the Company to the Trustee for cancelation. On or after the
redemption date, interest shall cease to accrue on Securities or portions
thereof called for redemption so long as the Company has deposited with the
Paying Agent funds sufficient to pay the principal of, plus accrued but unpaid
interest, if any, on the Securities to be redeemed.
SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01. 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.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to
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do so by law, deduct or withhold income or other similar taxes imposed by
applicable law from principal or interest payments hereunder.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and subject to Section 2.11, it shall pay
interest on overdue installments of interest at the same rate to the extent
lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY FOR REGISTRATION OF
TRANSFER, EXCHANGE AND PAYMENT OF SECURITIES. So long as any of the Securities
shall remain outstanding, the Company shall maintain an office or agency in the
Borough of Manhattan, The City of New York, State of New York, where the
Securities may be surrendered for exchange or registration of transfer as in
this Indenture provided, and where notices and demands to or upon the Company in
respect to the Securities may be served, and where the Securities may be
presented or surrendered for payment. The Company may also from time to time
designate one or more other offices or agencies where Securities may be
presented or surrendered for any and all such purposes and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in the Borough of Manhattan, The City of New York, State of
New York for such purposes. The Company shall give to the Trustee prompt written
notice of the location of any such office or agency and of any change of
location thereof. The Company initially appoints the Trustee c/o JPMorgan Chase
Bank, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 for each of
said purposes. In case the Company shall fail to maintain any such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, such surrenders, presentations and demands may be made and
notices may be served at the principal office of the Trustee, and the Company
hereby appoints the Trustee its agent to receive at the aforesaid office all
such surrenders, presentations, notices and demands. The Trustee shall give the
Company prompt notice of any change in location of the Trustee's principal
office.
SECTION 4.03. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF
TRUSTEE. The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, shall appoint, in the manner provided in Section 7.08, a
Trustee, so that there shall at all times be a Trustee hereunder.
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SECTION 4.04. PROVISION AS TO PAYING AGENT. (a) If the Company shall
appoint a Paying Agent other than the Trustee, it shall cause such Paying Agent
to execute and deliver to the Trustee an instrument in which such agent shall
undertake, subject to the provisions of this Section 4.04,
(1) that it shall hold all sums held by it as such agent for the
payment of the principal of or interest on the Securities such sums which
have been paid to it by the Company (or by any other obligor on the
Securities) in trust for the benefit of the Holders of the Securities and
shall notify the Trustee of the receipt of sums to be so held,
(2) that it shall give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities) to make any payment of
the principal of or interest on the Securities when the same shall be due
and payable,
(3) that it shall at any time during the continuance of any Event of
Default specified in Section 6.01(1) or 6.01(2), upon the written request
of the Trustee, deliver to the Trustee all sums so held in trust by it,
and
(4) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and
liabilities of such Paying Agent.
(b) If the Company shall not act as its own Paying Agent, it shall,
by the opening of business (New York City time) on each due date of the
principal and interest on any Security, deposit with such Paying Agent a sum in
same day funds sufficient to pay the principal of or interest so becoming due,
such sum to be held in trust for the benefit of the holders of Securities
entitled to such principal of or interest, and (unless such Paying Agent is the
Trustee) the Company shall promptly notify the Trustee of its failure so to act.
(c) If the Company shall act as its own Paying Agent, it shall, by
the opening of business (New York City time) on each due date of the principal
and interest on any Security, set aside, segregate and hold in trust for the
benefit of the persons entitled thereto, a sum sufficient to pay such principal
or interest so becoming due and shall notify the Trustee of any failure to take
such action.
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(d) Anything in this Section 4.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any Paying Agent hereunder, as
required by this Section 4.04, such sums to be held by the Trustee upon the
trusts herein contained.
(e) Anything in this Section 4.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 4.04 is subject
to the provisions of Sections 8.04 and 8.06.
SECTION 4.05. MAINTENANCE OF CORPORATE EXISTENCE. So long as any of
the Securities shall remain outstanding, the Company shall at all times (except
as otherwise provided or permitted elsewhere in this Indenture) do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and franchises.
SECTION 4.06. LIMITATION ON LIENS. So long as any of the Securities
are outstanding, the Company shall not, and shall not permit any Principal
Subsidiary to create, incur, assume or suffer to exist any Lien upon, any
property or assets owned or leased by the Company or any Principal Subsidiary to
secure any Indebtedness, without effectively providing that the Securities then
outstanding shall (so long as such other Indebtedness shall be so secured) be
equally and ratably secured; PROVIDED, HOWEVER, that this restriction shall not
apply to or prevent the creation or existence of:
(a) Liens for taxes not yet due or that are being contested in good
faith by appropriate proceedings, PROVIDED that adequate reserves with
respect thereto are maintained on the books of the Company or its
Principal Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
that are not overdue for a period of more than 60 days or that are being
contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
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(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and that do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Principal Subsidiary;
(f) Liens in existence on the Issue Date, PROVIDED that no such Lien
is spread to cover any additional property after the Issue Date and that
the amount of Indebtedness secured thereby is not increased;
(g) Liens arising in connection with trade letters of credit issued
for the account of the Company or a Principal Subsidiary securing the
reimbursement obligations in respect of such letters of credit, PROVIDED
that such Liens encumber only the property being acquired through payments
made under such letters of credit or the documents of title and shipping
and insurance documents relating to such property;
(h) Liens upon intellectual property acquired by the Company or a
Principal Subsidiary (such as software) securing the obligation of the
Company or such Principal Subsidiary to make royalty or similar payments
to the seller of such intellectual property, PROVIDED that such Liens
encumber only the intellectual property to which such payments relate;
(i) any Lien upon any property or assets created at the time of the
acquisition, purchase, lease, improvement or development of property or
assets used or held by the Company or any Principal Subsidiary or within
one year after such time to secure all or a portion of the purchase price
or lease for, or the costs of improvement or development of, such property
or assets;
(j) any Lien upon any property or assets existing thereon at the
time of the acquisition thereof by the Company or any Principal Subsidiary
(whether or not the
19
obligations secured thereby are assumed by the Company or any Principal
Subsidiary);
(k) any Lien in favor of the Company or any Principal Subsidiary;
(l) any Lien created or assumed by the Company or any Principal
Subsidiary in connection with the issuance of debt securities the interest
on which is excludable from gross income of the holder of such security
pursuant to the Code for the purpose of financing, in whole or in part,
the acquisition, purchase, improvement or development of property or
assets to be used or held by the Company or any Principal Subsidiary;
(m) any Lien securing any Indebtedness in an amount which, together
with (1) all other Indebtedness secured by a Lien that is not otherwise
permitted by the provisions of this Section 4.06, and (2) all Attributable
Debt of the Company and its Subsidiaries with respect to Sale and
Leaseback Transactions permitted only under Section 4.07(e), that does not
at the time of the incurrence of the Indebtedness so secured exceed 10% of
the Company's Consolidated Net Tangible Assets; or
(n) any extension, renewal or refunding of any Lien permitted by the
foregoing clauses (f) through (m), inclusive, on substantially the same
property or assets theretofore subject thereto.
SECTION 4.07. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. So long
as any Securities are outstanding, the Company shall not enter into, and shall
not permit any Principal Subsidiary to enter into, any Sale and Leaseback
Transaction with respect to any property or assets of the Company or any
Principal Subsidiary unless:
(a) such Sale and Leaseback Transaction involves a lease for a term
of not more than three years;
(b) such Sale and Leaseback Transaction is between the Company and a
Principal Subsidiary or between Principal Subsidiaries;
(c) the Company or such Principal Subsidiary would be entitled to
incur Indebtedness secured by a Lien on such property or assets involved in such
Sale and Leaseback
20
Transaction without equally and ratably securing the Securities pursuant to
Section 4.06 above;
(d) the cash proceeds of such Sale and Leaseback Transaction are at
least equal to the fair market value thereof (as determined in good faith by the
Board of Directors of the Company) or the debt attributable thereto and the
Company applies an amount equal to the greater of the net proceeds of such sale
or the Attributable Debt with respect to such Sale and Leaseback Transaction
within 180 days of such sale to either (or a combination) of (1) the retirement
(other than the mandatory retirement, mandatory prepayment or sinking fund
payment or by payment at maturity) of long-term debt of the Company or a
Subsidiary (other than long-term debt that is subordinated to the Securities) or
(2) the acquisition, purchase, improvement or development of other comparable
property; or
(e) any Sale and Leaseback Transaction in an amount which, together
with (1) all Attributable Debt of the Company and its Principal Subsidiaries
under this clause (e), and (2) all other Indebtedness secured by a Lien that is
not otherwise permitted by the provisions of Sections 4.06(a) through (l), does
not at the time of such transaction exceed 10% of Consolidated Net Tangible
Assets.
SECTION 4.08. 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 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 ss. 314(a)(4).
SECTION 4.09. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company shall 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.
SECTION 4.10. SEC REPORTS. Notwithstanding that the Company may not
be subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall file with the SEC (so long as permitted by the SEC) and
provide the Trustee and Securityholders with such annual reports and such
21
information, documents and other reports as are specified in Sections 13 and
15(d) of the Exchange Act and applicable to a U.S. corporation subject to such
Sections, such information, documents and other reports to be so filed and
provided at the times specified for the filing of such information, documents
and reports under such Sections. In addition, at any time that the Company is
neither subject to Section 13 or 15(d) of the Exchange Act, nor exempt from
reporting pursuant to Rule 12g3-2(b) under the Exchange Act, the Company shall
furnish to the Holder of the Initial Securities and to prospective investors in
such Initial Securities, upon the requests of such Holders, any information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so
long as such Securities are not freely transferable under the Securities Act.
The Company also shall comply with the other provisions of TIA ss. 314(a).
ARTICLE V
SUCCESSOR COMPANY
SECTION 5.01. WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. The Company
shall not consolidate or merge with or into any Person, or sell, lease, convey
or otherwise dispose of all or substantially all of its assets, or assign any of
its obligations under this Indenture or the Securities, to any Person, unless:
(1) the Person formed by or surviving such consolidation or merger
(if other than the Company), or to which such sale, lease, conveyance or
other disposition or arrangement shall be made (collectively, the
"Successor Company"), is a corporation organized and existing under the
laws of the United States or any State thereof or the District of Columbia
and the Successor Company assumes by supplemental indenture in a form
reasonably satisfactory to the Trustee all of the obligations of the
Company under this Indenture and under the Securities; and
(2) immediately after giving effect to such transaction no Default
shall have occurred and be continuing; and
(3) 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 (if any)
comply with this Indenture.
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The Successor Company shall be the successor to the Company and
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture, but the predecessor Company in the case of
a conveyance, transfer or lease of all or substantially all of the Company's
assets, shall not be released from the obligation to pay the principal of and
interest on the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest on any Security
when the same becomes due and payable and such default continues for a
period of 30 days;
(2) the Company defaults in the payment of the principal of any
Security when the same becomes due and payable at its Stated Maturity,
upon optional redemption, upon declaration or otherwise;
(3) the Company fails to comply with Section 5.01;
(4) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clauses (1),
(2) or (3) above) and such failure continues for 60 days after the notice
specified below;
(5) any default or event of default under any Indebtedness of the
Company or any of its Subsidiaries (other than any indebtedness of the
Company or any Subsidiary to the seller of a business or asset incurred in
connection with the purchase thereof) which default or event of default
results in at least $20.0 million (PROVIDED, HOWEVER, that at such time as
the Company's 7.32% Notes are paid in full at maturity, are fully redeemed
in accordance with the terms of the 7.32% Notes or no 7.32% Notes are
otherwise outstanding, then this amount shall be $50.0 million) of
aggregate principal amount of such Indebtedness being declared due and
payable prior to maturity (the "cross acceleration provision");
23
(6) failure by the Company or any of its Subsidiaries to pay at
maturity at least $20.0 million (provided, however, that at such time as
the Company's 7.32% Notes are paid in full at maturity, are fully redeemed
in accordance with the terms of the 7.32% Notes or no 7.32% Notes are
otherwise outstanding, then this amount shall be $50.0 million) aggregate
principal amount of Indebtedness at any one time, which failure continues
for 15 days after notice specified below;
(7) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency; or
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case;
(B) appoints a Custodian of the Company or for any substantial
part of its property; or
(C) orders the winding up or liquidation of the Company;
or any similar relief is granted under any foreign laws and the order,
decree or relief remains unstayed and in effect for 60 days.
The foregoing shall 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.
24
The term "Bankruptcy Law" means Xxxxx 00, XXXXXX XXXXXX 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.
Notwithstanding the foregoing, a Default under Section 6.01(4) and
(6) shall not constitute an Event of Default until the Trustee or the Holders of
at least 25% in principal amount of the outstanding Securities notify the
Company of the Default and the Company does not cure such Default within the
time specified in Section 6.01(4) or (6), as applicable, after receipt of such
notice. Such notice must specify the Default, demand that it be remedied and
state that such notice is a "Notice of Default."
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clauses (5) and (6) and any event which with the
giving of notice or the lapse of time would become an Event of Default under
clause (4) or (6), its status and what action the Company is taking or proposes
to take with respect thereto.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in Section 6.01(7) or (8)) 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 declare the principal of and accrued and unpaid interest on all the
Securities to be due and payable. Upon such a declaration, such principal and
interest shall be due and payable immediately. If an Event of Default specified
in Section 6.01(7) or (8) occurs, the principal of and accrued and unpaid
interest on all the Securities shall IPSO FACTO become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holders. The Holders of a majority in principal amount of the Securities by
notice to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of acceleration. No such rescission
shall affect any subsequent Default or Event of Default or impair any right
consequent thereto.
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SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of 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 Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a majority in
outstanding principal amount of the Securities by notice to the Trustee may
waive an existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Security or (ii) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of each Holder affected. When a Default is waived, it is deemed cured,
but no such waiver shall extend to any subsequent or other Default or impair any
consequent right.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
outstanding principal amount of the 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 7.01, that the Trustee reasonably determines is unduly
prejudicial to the rights of other Holders 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 6.06. LIMITATION ON SUITS. Except to enforce the right to
receive payment of principal or interest when due, no Holder may pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
26
(2) the Holders of at least 25% in outstanding principal amount of
the Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the Securities
do not give the Trustee a direction inconsistent with the request during
such 60-day period.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and 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 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.01(1) or (2) 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
7.07.
SECTION 6.09. 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 and the Holders allowed in
any judicial proceedings relative to the Company, its Subsidiaries or their
respective creditors or properties and, unless prohibited by law or applicable
regulations, 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
27
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
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:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders 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 Holders pursuant to this Section 6.10. At least 15 days before such record
date, the Company shall mail to each Holder 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, 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 a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in outstanding principal amount of the Securities.
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS. The Company (to the
extent it may lawfully do so) shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so)
28
hereby expressly waives all benefit or advantage of any such law, and shall not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE VII
TRUSTEE
SECTION 7.01. 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
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) 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
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of Section 7.01(b);
(2) 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
29
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) 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.
(e) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(f) 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.
(g) 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 7.01 and to the provisions of the TIA.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
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 wilful
misconduct or negligence.
30
(e) The Trustee may consult with counsel, 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.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company 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 Sections 7.10 and 7.11.
SECTION 7.04. 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, it shall not be accountable for the Company's
use of the proceeds from the Securities, it shall not be responsible for the use
or application of any money received by any Paying Agent (other than itself as
Paying Agent), and it 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 7.05. NOTICE OF DEFAULTS. If a Default or Event of Default
occurs and is continuing and it is known to the Trustee, the Trustee shall mail
to each Holder notice of the Default or Event of Default within 60 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, the Trustee may withhold the notice
if and so long as a committee of its Trust Officers in good faith determines
that withholding the notice is in the interests of Holders.
SECTION 7.06. 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, if required by
TIA ss. 313, the Trustee shall mail to each Holder a brief report dated as of
such May 15 that complies with TIA ss. 313(a). The Trustee also shall comply
with TIA ss. 313(b). The Trustee shall also transmit by mail all reports
required by TIA ss. 313(c).
31
A copy of each report at the time of its mailing to Holders shall be
filed by the Company 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 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to
the Trustee from time to time, and the Trustee shall be entitled to,
compensation for its services as set forth in a separate fee agreement between
the Trustee and the Company. 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-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 Holders and reasonable costs of counsel retained by the
Trustee 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 and hold harmless the Trustee against any and all loss, liability or
expense (including reasonable attorneys' fees) incurred by it in connection with
the administration of this trust and the performance of its duties hereunder,
including the costs and expenses of enforcing this Indenture (including this
Section 7.07) and of defending itself against any claims (whether asserted by
any Holder, 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 may have separate
counsel and the Company shall pay the fees and expenses of such counsel. The
Company need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Trustee through the Trustee's own wilful misconduct,
negligence or bad faith.
To secure the Company's payment obligations in this Section 7.07,
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 7.07 shall not be
subordinate to any other liability or indebtedness of the Company.
32
The Company's payment obligations pursuant to this Section 7.07
shall survive the discharge of this Indenture and the resignation or removal of
the Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(7) or (8) with respect to the Company, the expenses
are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in outstanding
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:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders
of a majority in outstanding 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 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 the 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 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in outstanding principal
33
amount of the Securities may petition 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 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. 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 or banking
association without any further act shall be the successor Trustee.
If 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 if at that time any of the Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the name of the successor
to the Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Securities or in this Indenture provided that
the certificate of the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at
all times satisfy the requirements of TIA ss. 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
ss. 310(b); PROVIDED, HOWEVER, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other 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 ss.
310(b)(1) are met.
34
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES; DEFEASANCE. (a)
When (1) the Company delivers to the Trustee all outstanding Securities (other
than Securities replaced pursuant to Section 2.07) for cancelation or (2) all
outstanding Securities have become due and payable, whether at Stated Maturity
or on a redemption date as a result of the mailing of a notice of redemption
pursuant to Article 3 hereof and the Company irrevocably deposits with the
Trustee funds sufficient to pay at Stated Maturity or upon redemption all
outstanding Securities, including interest thereon to Stated Maturity or such
redemption date (other than Securities replaced pursuant to Section 2.07), and
if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 8.01(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company (accompanied by 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 and at the cost and expense of the Company).
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time
may terminate (1) all its obligations under the Securities and this Indenture
("legal defeasance option") or (2) its obligations under Sections 4.02, 4.03,
4.04, 4.05, 4.06 and 4.07, and the operation of Sections 6.01(3), 6.01(4),
6.01(5) and 6.01(6) and 6.01(9) ("covenant defeasance option"); PROVIDED,
HOWEVER, no deposit under this Article VIII shall be effective to terminate the
obligations of the Company under the Securities or this Indenture prior to 91
days following any such deposit. The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an
35
Event of Default. If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of Default
specified in Sections 6.01(3), 6.01(5), 6.01(6) or 6.01(9).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 7.01(a) and (b), the
Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and
7.08 and this Article VIII shall survive until the Securities have been paid in
full. Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05
shall survive.
SECTION 8.02. CONDITIONS TO DEFEASANCE. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of and
interest on the Securities to Stated Maturity or redemption, as the case
may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without reinvestment will provide cash at such times and
in such amounts as will be sufficient to pay principal and interest when
due on all the Securities to Stated Maturity or redemption, as the case
may be;
(3) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Sections 6.01(7) or (8) occurs which is
continuing at the end of the periods;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
is qualified as, a
36
regulated investment company under the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (B) since the date of this Indenture 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, the Securityholders will not recognize income, gain or loss
for Federal income tax purposes as a result of such 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;
(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Securityholders shall not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and shall 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 covenant defeasance
had not occurred;
(8) the Securityholders shall have a perfected security interest
under applicable law in the cash or U.S. Government Obligations deposited
pursuant to Section 8.02(i) above;
(9) the Company shall have delivered to the Trustee an Opinion of
Counsel, in form and substance reasonably satisfactory to the Trustee, to
the effect that, after the passage of 91 days following the deposit, the
trust funds shall not be subject to any applicable bankruptcy, insolvency,
reorganization or similar law affecting creditors' rights generally;
(10) such defeasance shall not cause the Trustee to have a
conflicting interest with respect to any securities of the Company; and
(11) the Company delivers 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.
37
Before or after a deposit, the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date in accordance with
Article III.
SECTION 8.03. APPLICATION OF TRUST MONEY. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.04. REPAYMENT TO COMPANY. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money or
securities held by them upon payment of all the obligations under this
Indenture.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal of or interest on the Securities that remains
unclaimed for two years, and, thereafter, Securityholders entitled to the money
must look to the Company for payment as general creditors.
SECTION 8.05. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.06. REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the Company under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; PROVIDED, HOWEVER, that, if
the Company has made any payment of interest on or principal of 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 Obligations held by the Trustee or Paying Agent.
38
ARTICLE IX
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the
Trustee may amend this Indenture or the Securities without notice to or consent
of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; PROVIDED, HOWEVER, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to add guarantees with respect to the Securities, or to secure
the Securities.
(5) 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;
(6) to make any change that does not adversely affect the rights of
any Holder; or
(7) to comply with any requirement of the SEC in connection with
qualifying this Indenture under the TIA.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to each Securityholder 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 9.01.
SECTION 9.02. 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 consents obtained in
connection with a tender offer or exchange for the
39
Securities). However, without the consent of each Securityholder affected
thereby, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal of, or extend the Stated Maturity of, any
Security;
(4) make any Security payable in money other than that stated in
such Security;
(5) reduce the amount payable upon redemption of any Security or
change the time at which any Security may be redeemed in accordance with
Article III;
(6) modify or affect in any manner adverse to the Holders the right
of any Holder of the Securities to receive payment of principal of and
interest on such Holder's Securities on or after the due dates therefore
or to institute suit for the enforcement of any payment on or with respect
to such Holder's Securities;
(7) make any change in Section 6.04 or 6.07 or the second sentence
of this Section 9.02; or
(8) make any change in the ranking or priority of any Security that
would adversely affect the holders of the Securities.
It shall not be necessary for the consent of the Holders under this
Section 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 8.02 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 9.02.
40
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment
to this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. 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. After an
amendment or waiver becomes effective, it shall bind every Holder. An amendment
or waiver becomes effective upon the execution of such amendment or waiver by
the Trustee and the Company.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders 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 Holders 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.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may, but shall not be
required to, 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 9.06. 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 be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to
41
Section 7.01) 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.
SECTION 9.07. PAYMENT FOR CONSENT. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS. If any provision of
this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control.
SECTION 10.02. 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:
Xxxxxx International Industries, Incorporated
0000 Xxxxxxxxxxxx Xxxxxx X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxx, Treasurer
if to the Trustee:
X.X. Xxxxxx Trust Company, National Association
One Liberty Plaza
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
42
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to
the Holder at the Holder'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 Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Holders
may communicate pursuant to TIA ss. 312(b) with other Holders 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 ss. 312(c).
SECTION 10.04. 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
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) 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.
Notwithstanding the foregoing, it is understood that no Opinion of Counsel or
Officers' Certificate shall be required pursuant to this Section 10.04 in
connection with the issuance of the Initial Securities on the Issue Date.
43
SECTION 10.05. 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:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such 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
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 10.06. 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 the Trustee 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 10.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 10.08. LEGAL HOLIDAYS. A "Legal Holiday" is a Saturday, a
Sunday or a day on which commercial banking institutions are not required to be
open in the State of New York. 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
44
regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 10.09. GOVERNING LAW. This Indenture and the Securities
shall be governed by, and construed and interpreted in accordance with, the laws
of the State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 10.10. NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company 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 Holder 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 their respective 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. 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.
45
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
XXXXXX INTERNATIONAL
INDUSTRIES, INCORPORATED,
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
46
RULE 144A/REGULATION S APPENDIX
PROVISIONS RELATING TO INITIAL SECURITIES,
PRIVATE EXCHANGE SECURITIES
AND EXCHANGE SECURITIES
1. DEFINITIONS.
1.1 DEFINITIONS.
For the purposes of this Appendix the following terms shall have the
meanings indicated below:
"Depository" means The Depository Trust Company, its nominees and
their respective successors.
"Exchange Securities" means the (1) 7-1/8% Notes Due 2007 to be
issued pursuant to the Indenture in connection with the Registered Exchange
Offer pursuant to the Registration Rights Agreement or (2) Additional
Securities, if any, issued pursuant to a registration statement filed with the
SEC under the Securities Act.
"Initial Purchaser" means (1) with respect to the Initial Securities
issued on the Issue Date, Credit Suisse First Boston Corporation, and Bear,
Xxxxxxx & Co. Inc. and X.X. Xxxxxx Securities, Inc. and (2) with respect to each
issuance of Additional Securities, the Persons purchasing such Additional
Securities under the related Purchase Agreement.
"Initial Securities" means (1) $7-1/8 aggregate principal amount of
7-1/8% Notes Due 2007 issued on the Issue Date and (2) Additional Securities, if
any, issued in a transaction exempt from the registration requirements of the
Securities ACT.
"Private Exchange" means the offer by the Company, pursuant to the
Registration Rights Agreement, to the Initial Purchasers to issue and deliver to
each Initial Purchaser, in exchange for the Initial Securities held by the
Initial Purchaser as part of its initial distribution, a like aggregate
principal amount of Private Exchange Securities.
"Private Exchange Securities" means any 7-1/8% Notes Due 2007 issued
in connection with a Private Exchange.
2
"Purchase Agreement" means (1) with respect to the Initial
Securities issued on the Issue Date, the Purchase Agreement dated February 13,
2002, among the Company and the Initial Purchasers, and (2) with respect to each
issuance of Additional Securities, the purchase agreement or underwriting
agreement among the Company and the Persons purchasing such Additional
Securities.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registered Exchange Offer" means the offer by the Company, pursuant
to the Registration Rights Agreement, to certain Holders of Initial Securities,
to issue and deliver to such Holders, in exchange for the Initial Securities, a
like aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Rights Agreement" means (1) with respect to the
Initial Securities issued on the Issue Date, the Registration Rights Agreement
dated February 13, 2002, among the Company and the Initial Purchasers, and (2)
with respect to each issuance of Additional Securities issued in a transaction
exempt from the registration requirements of the Securities Act, the
registration rights agreement, if any, among the Company and the Persons
purchasing such Additional Securities under the related Purchase Agreement.
"Securities Act" means the Securities Act of 1933.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depository), or any successor Person thereto and
shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement filed
by the Company with the SEC in connection with the resale of Initial Securities
or Private Exchange Securities pursuant to the Registration Rights Agreement.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth in Section 2.3(b)hereto.
3
1.2 OTHER DEFINITIONS
Term Defined in
Section
-------
"Agent Members"....................................................... 2.1(b)
"Global Security"..................................................... 2.1(a)
"Regulation S"........................................................ 2.1(a)
"Restricted Global Security".......................................... 2.1(a)
"Rule 144A"........................................................... 2.1(a)
2. THE SECURITIES.
2.1 (a) FORM AND DATING. Initial Securities offered and sold to a
QIB in reliance on Rule 144A under the Securities Act ("Rule 144A") or in
reliance on Regulation S under the Securities Act ("Regulation S"), in each case
as provided in the Purchase Agreement, and Private Exchange Securities, as
provided in the Registration Rights Agreement, shall be issued initially in the
form of one or more permanent global Securities in definitive, fully registered
form without interest coupons with the global securities legend and restricted
securities legend set forth in Exhibit 1 hereto (each, a "Restricted Global
Security"), which shall be deposited on behalf of the purchasers of the Initial
Securities represented thereby with the Trustee, at its designated corporate
trust office, as custodian for the Depository (or with such other custodian as
the Depository may direct), and registered in the name of the Depository or a
nominee of the Depository, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depository or its nominee as hereinafter
provided. Exchange Securities shall be issued in global form (with the global
securities legend set forth in Exhibit 1 hereto). Exchange Securities issued in
global form and Restricted Global Securities are sometimes referred to in this
Appendix as "Global Securities."
(b) BOOK-ENTRY PROVISIONS. This Section 2.1(b) shall apply only to a
Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depository for such
Global Security or Global Securities or the nominee of such Depository
4
and (b) shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instructions or held by the Trustee as custodian for the
Depository.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository or by the Trustee as the custodian of the
Depository or under such Global Security, and the Company, the Trustee and any
agent of the Company or the Trustee shall be entitled to treat the Depository as
the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(c) CERTIFICATED SECURITIES. Except as provided in this Section 2.1
or Section 2.3 or 2.4, owners of beneficial interests in Restricted Global
Securities shall not be entitled to receive physical delivery of certificated
Securities.
2.2 AUTHENTICATION. The Trustee shall authenticate and deliver: (1)
on the Issue Date, an aggregate principal amount of $300.0 million 7-1/8% Notes
Due 2007, (2) any Additional Securities for an original issue in an aggregate
principal amount specified in the written order of the Company pursuant to
Section 2.02 of the Indenture and (3) Exchange Securities or Private Exchange
Securities for issue only in a Registered Exchange Offer or a Private Exchange,
respectively, pursuant to a Registration Rights Agreement, for a like principal
amount of Initial Securities, 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. Such order shall specify the amount of the
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated.
5
2.3 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
(1) The transfer and exchange of Global Securities or beneficial
interests therein shall be effected through the Depository, in accordance
with this Indenture (including applicable restrictions on transfer set
forth herein, if any) and the procedures of the Depository therefor. A
transferor of a beneficial interest in a Global Security shall deliver to
the Registrar a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in the Global
Security. The Registrar shall, in accordance with such instructions
instruct the Depositary to credit to the account of the Person specified
in such instructions a beneficial interest in the Global Security and to
debit the account of the Person making the transfer the beneficial
interest in the Global Security being transferred.
(2) Notwithstanding any other provisions of this Appendix (other
than the provisions set forth in Section 2.4), a Global Security may not
be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(3) In the event that a Restricted Global Security is exchanged for
Securities in certificated registered form pursuant to Section 2.4 of this
Appendix, prior to the consummation of a Registered Exchange Offer or the
effectiveness of a Shelf Registration Statement with respect to such
Securities, such Securities may be exchanged only in accordance with such
procedures as are substantially consistent with the provisions of this
Section 2.3 (including the certification requirements set forth on the
Assignment Form attached to the Initial Securities and Private Exchange
Securities intended to ensure that such transfers comply with Rule 144A or
Regulation S, as the case may be) and such other procedures as may from
time to time be adopted by the Company.
6
(b) LEGEND.
(1) Except as permitted by the following paragraphs (2), (3) and
(4), each Security certificate evidencing the Restricted Global Securities
(and all Securities issued in exchange therefor or in substitution
thereof) shall bear a legend in substantially the following form:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) THE COMPANY OR ITS AFFILIATES, (II) IN THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (IV) PURSUANT TO EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (V)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
(2) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Restricted
Global Security) pursuant to Rule 144 under the Securities Act, the
Registrar shall permit the transferee thereof to exchange such Transfer
Restricted Security for a certificated Security that does not bear the
legend set forth above and rescind any restriction on the transfer of such
Transfer Restricted Security, if the transferor thereof certifies in
writing to the Registrar that such sale or transfer was
7
made in reliance on Rule 144 (such certification to be in the form set
forth on the reverse of the Security).
(3) After a transfer of any Initial Securities or Private Exchange
Securities pursuant to and during the period of the effectiveness of a
Shelf Registration Statement with respect to such Initial Securities or
Private Exchange Securities, as the case may be, all requirements
pertaining to legends on such Initial Security or such Private Exchange
Security will cease to apply, the requirements requiring any such Initial
Security or such Private Exchange Security issued to certain Holders be
issued in global form will cease to apply, and a certificated Initial
Security or Private Exchange Security or an Initial Security or Private
Exchange Security in global form, in each case without restrictive
transfer legends, will be available to the transferee of the Holder of
such Initial Securities or Private Exchange Securities upon exchange of
such transferring Holder's certificated Initial Security or Private
Exchange Security or directions to transfer such Holder's interest in the
Global Security, as applicable.
(4) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities, all requirements pertaining to such
Initial Securities that Initial Securities issued to certain Holders be
issued in global form will still apply with respect to Holders of such
Initial Securities that do not exchange their Initial Securities, and
Exchange Securities in global form will be available to Holders that
exchange such Initial Securities in such Registered Exchange Offer.
(5) Upon the consummation of a Private Exchange with respect to the
Initial Securities, all requirements pertaining to such Initial Securities
that Initial Securities issued to certain Holders be issued in global form
will still apply with respect to Holders of such Initial Securities that
do not exchange their Initial Securities, and Private Exchange Securities
in global form with the global securities legend and the Restricted
Securities Legend set forth in Exhibit 1 hereto will be available to
Holders that exchange such Initial Securities in such Private Exchange.
(c) CANCELATION OR ADJUSTMENT OF GLOBAL SECURITY. At such time as
all beneficial interests in a Global Security have either been exchanged for
certificated Securities, redeemed,
8
purchased or canceled, such Global Security shall be returned to the Depository
for cancellation or retained and canceled by the Trustee. At any time prior to
such cancellation, if any beneficial interest in a Global Security is exchanged
for certificated Securities, redeemed, purchased or canceled, the principal
amount of Securities represented by such Global Security shall be reduced and an
adjustment shall be made on the books and records of the Trustee (if it is then
the Securities Custodian for such Global Security) with respect to such Global
Security, by the Trustee or the Securities Custodian, to reflect such reduction.
(d) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
SECURITIES.
(1) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate certificated Securities
and Global Securities at the Registrar's or co-registrar's request.
(2) No service charge shall be made for any registration of transfer
or exchange, but the Company may require 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 charge payable upon exchange or
transfer pursuant to Sections 2.06 and 8.05 of the Indenture).
(3) The Registrar or co-registrar shall not be required to register
the transfer of or exchange of any Security for a period beginning 15
Business Days before the mailing of a notice of an offer to repurchase or
redeem Securities or 15 Business Days before an interest payment date.
(4) 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 on such Security and for
all other purposes whatsoever, whether or not such Security is overdue,
and none of the Company, the Trustee, the Paying Agent, the Registrar or
any co-registrar shall be affected by notice to the contrary.
9
(5) 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.
(e) NO OBLIGATION OF THE TRUSTEE. The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in the Depository or other Person with respect to
the accuracy of the records of the Depository 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 the Depository) of any notice
(including any notice of redemption) or the payment of any amount, 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 under the Securities shall be
given or made only to or upon the order of the registered Holders (which shall
be the Depository or its nominee in the case of a Global Security). The rights
of beneficial owners in any Global Security shall be exercised only through the
Depository subject to the applicable rules and procedures of the Depository. The
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its members, participants and any
beneficial owners.
2.4 CERTIFICATED SECURITIES.
(a) A Global Security deposited with the Depository or with the
Trustee as custodian for the Depository pursuant to Section 2.1 shall be
transferred to the beneficial owners thereof in the form of certificated
Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 and (i) the Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a "clearing agency"
registered under the Exchange Act and a successor depositary is not appointed by
the Company within 90 days of such notice, or (ii) an Event of Default has
occurred and is continuing or (iii) the Company, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
certificated Securities under this Indenture.
10
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section shall be surrendered by the Depository
to the Trustee located at its designated corporate trust office in the Borough
of Manhattan, The City of New York, to be so transferred, in whole or from time
to time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Security, an equal aggregate
principal amount of certificated Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 principal
amount and any integral multiple thereof and registered in such names as the
Depository shall direct. Any certificated Security delivered in exchange for an
interest in the Restricted Global Security shall, except as otherwise provided
by Section 2.3(b), bear the restricted securities legend set forth in Exhibit 1
hereto.
(c) Subject to the provisions of Section 2.4(b), the registered
Holder of a Global Security shall be entitled to 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.
(d) In the event of the occurrence of either of the events specified
in Section 2.4(a), the Company shall promptly make available to the Trustee a
reasonable supply of certificated Securities in definitive, fully registered
form without interest coupons.
EXHIBIT 1
TO
RULE 144A/REGULATION S APPENDIX
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY 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
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 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.
[Restricted Securities Legend]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) THE COMPANY OR ITS AFFILIATES, (II) IN THE UNITED STATES TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
12
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO
IN (A) ABOVE.
CUSIP No.________________________
ISIN No._________________________
No. R-___________________________ $ _______________________________
7-1/8% Notes Due 2007
Xxxxxx International Industries, Incorporated, a Delaware
corporation, promises to pay to CEDE & CO., or registered assigns, the principal
sum of [ ] on February 15, 2007.
Interest Payment Dates: February 15 and August 15, commencing [ ].
Record Dates: February 1 and August 1.
Additional provisions of this Security are set forth on the other
side of this Security.
Dated:
XXXXXX INTERNATIONAL INDUSTRIES,
INCORPORATED
By:
------------------------------------
Name:
Title:
By:
By:
------------------------------------
Name:
Title:
14
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
X.X. XXXXXX TRUST COMPANY, National Association
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:
-------------------------------
Authorized Signatory
15
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
7-1/8% Notes Due 2007
1. INTEREST
Xxxxxx International Industries, Incorporated, a Delaware
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; provided, however, that if a Registration Default (as defined in
the Registration Rights Agreement) occurs, additional interest will accrue on
this Security at a rate of 0.50% per annum (increasing by an additional 0.25%
per annum after each consecutive 90-day period that occurs after the date on
which such Registration Default occurs up to a maximum additional interest rate
of 1.00%) from and including the date on which any such Registration Default
shall occur to but excluding the date on which all Registration Defaults have
been cured. The Company will pay interest semiannually on February 15 and August
15 of each year, commencing [ ]. Interest on the Securities will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from [ ]. Interest will be computed on the basis of a
360-day year of twelve 30-day months. The Company will pay interest on overdue
principal at the rate borne by the Securities plus 1% per annum, and it will pay
interest on overdue installments of interest at the same rate to the extent
lawful.
2. METHOD OF PAYMENT
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the February 1 or August 1 next preceding the interest payment
date even if Securities are canceled 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. Payments in respect of the Securities represented by a
Global Security (including principal, premium and interest) will be made by wire
transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of
16
a certificated Security (including principal, premium and interest) by mailing a
check to the registered address of each Holder thereof; PROVIDED, HOWEVER, that
payments on a certificated Security will be made by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, X.X. Xxxxxx Trust Company, National Association, a
banking association (the "Trustee"), will act as Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as of
February 19, 2002 ("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"). Terms
defined in the Indenture 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.
The Securities are general unsecured obligations of the Company. The
Company shall be entitled to issue Additional Securities pursuant to Section
2.13 of the Indenture. The Initial Securities issued on the Issue Date, any
Additional Securities and all Exchange Securities or Private Exchange Securities
issued in exchange therefor will be treated as a single class for all purposes
under the Indenture. The Indenture contains covenants that limit the ability of
the Company and its Principal Subsidiaries to create liens on assets and engage
in Sale and Leaseback Transactions. These covenants are subject to important
exceptions and qualifications.
17
5. OPTIONAL REDEMPTION
The Securities are subject to redemption, in whole or in part, at
the option of the Company, at any time at a redemption price equal to the
greater of (1) 100% of the principal amount of the Securities being redeemed
plus accrued and unpaid interest to the redemption date or (2) the Make-Whole
Amount for the Securities being redeemed.
"Make Whole Amount" means the sum, as determined by a Quotation
Agent, of the present values of the principal amount of the Securities to be
redeemed, together with scheduled payments of interest (exclusive of interest to
the redemption date) from the redemption date to the maturity date of the
Securities being redeemed, in each case discounted to the redemption date on a
semi-annual basis, assuming a 360-day year consisting of twelve 30-day months,
at the Adjusted Treasury Rate, plus accrued and unpaid interest on the principal
amount of the Securities being redeemed to the redemption date.
"Adjusted Treasury Rate" means, with respect to any redemption date,
(i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States 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 remaining term of the Securities of the
series being redeemed, 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 (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per year equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date, in each case calculated on the third
Business Day preceding the redemption date, plus 0.50%.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a
18
maturity comparable to the remaining term from the redemption date to the
maturity date of the Securities being 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 the Securities.
"Comparable Treasury Price" means, with respect to any redemption
date, if clause (ii) of the Adjusted Treasury Rate is applicable, the average of
three, or such lesser number as is obtained by the Trustee, Reference Treasury
Dealer Quotations for such redemption date.
"Quotation Agent" means the Reference Treasury Dealer selected by
the Company.
"Reference Treasury Dealer" means Credit Suisse First Boston
Corporation and its successors and assigns, and two other nationally recognized
investment banking firms selected by the Company that are primary U.S.
Government securities dealers.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount, quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities in denominations larger than
$1,000 principal amount may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued interest
on all Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
19
7. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in
denominations of $1,000 principal amount 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 register the transfer of
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
8. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the owner
of it for all purposes.
9. 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.
10. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time shall be
entitled to 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
Obligations for the payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
11. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture and the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal
20
amount outstanding of the Securities. Subject to certain exceptions set forth in
the Indenture, without the consent of any Securityholder, the Company and the
Trustee shall be entitled to amend the Indenture or the Securities to cure any
ambiguity, omission, defect or inconsistency, or to comply with Article 5 of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities or to secure the Securities, or to add additional covenants 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.
12. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities, upon redemption pursuant to paragraph 5 of the
Securities, upon acceleration or otherwise; (iii) failure by the Company to
comply with other agreements in the Indenture or the Securities, in certain
cases subject to notice and lapse of time; (iv) certain accelerations of other
Indebtedness of the Company if the amount accelerated (or so unpaid) exceeds
$20.0 million (or, under certain conditions, $50.0 million); (v) failure by the
Company or any Subsidiary to pay at maturity at least $20.0 million (or, under
certain circumstances, $50.0 million) of other Indebtedness, subject to notice;
and (vi) certain events of bankruptcy or insolvency with respect to the Company
and its Subsidiaries.
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 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 (except a Default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders.
13. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other
21
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.
14. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the
Company or the Trustee 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.
15. AUTHENTICATION
This Security shall not be valid until an authorized signatory of
the Trustee (or an Authenticating Agent) manually signs the certificate of
authentication on the other side of this Security.
16. 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
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
17. 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.
22
18. HOLDERS' COMPLIANCE WITH REGISTRATION RIGHTS AGREEMENT
Each Holder of a Security, by acceptance hereof, acknowledges and
agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.
19. GOVERNING LAW
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Securityholder upon written request
and without charge to the Security holder a copy of the Indenture which has in
it the text of this Security in larger type. Requests may be made to:
Xxxxxx International Industries, Incorporated
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxx, Treasurer
23
____________________________________________________________________
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: ____________________
____________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act of 1933 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 transferred in accordance with its
terms:
CHECK ONE BOX BELOW
(1) o to the Company; or
(2) o pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) o inside the United States to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act of 1933)
that purchases
24
for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer
is being made in reliance on Rule 144A, in each case pursuant
to and in compliance with Rule 144A under the Securities Act
of 1933; or
(4) o outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933; or
(5) o pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933.
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 (4) or (5) is checked, the Trustee shall be entitled to require,
prior to registering any such transfer of the Securities, such legal
opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided
by Rule 144 under such Act.
________________________________________
Signature
Signature Guarantee:
_____________________________________________________________
Signature must be guaranteed Signature
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the
25
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
_____________________________________________________________
26
TO BE COMPLETED BY PURCHASER IF (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, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated: ________________ ______________________________
NOTICE: To be executed by
an executive officer
27
[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:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal amount in Principal amount this Global Security authorized officer
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
EXHIBIT A
FORM OF FACE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY*/**
CUSIP No._____________
No. ___________________ $ ____________________
7-1/8% Notes Due 2007
Xxxxxx International Industries, Incorporated, a Delaware
corporation, promises to pay to CEDE & CO., or registered assigns, the principal
sum of [ ] on February 15, 2007.
Interest Payment Dates: February 15 and August 15, commencing
[__________].
Record Dates: February 1 and August 1.
Additional provisions of this Security are set forth on the other
side of this Security.
Dated:
XXXXXX INTERNATIONAL INDUSTRIES,
INCORPORATED
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
----------
* [If the Security is to be issued in global form add the Global Securities
Legend from Exhibit 1 to Appendix A and the attachment from such Exhibit 1
captioned "[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL SECURITY".]
** [If the Security is a Private Exchange Security issued in a Private Exchange
to an Initial Purchaser holding an unsold portion of its initial allotment, add
the Restricted Securities Legend from Exhibit 1 to Appendix A and replace the
Assignment Form included in this Exhibit A with the Assignment Form included in
such Exhibit 1.]
2
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
X.X. XXXXXX TRUST COMPANY, National Association
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:
-------------------------------
Authorized Signatory
3
[FORM OF REVERSE SIDE OF EXCHANGE OR PRIVATE EXCHANGE SECURITY]
7-1/8% Notes Due 2007
1. INTEREST
Xxxxxx International Industries, Incorporated, a Delaware
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; [PROVIDED, HOWEVER, THAT IF A REGISTRATION DEFAULT (AS DEFINED IN
THE REGISTRATION RIGHTS AGREEMENT) OCCURS, ADDITIONAL INTEREST WILL ACCRUE ON
THIS SECURITY AT A RATE OF 0.50% PER ANNUM (INCREASING BY AN ADDITIONAL 0.25%
PER ANNUM AFTER EACH CONSECUTIVE 90-DAY PERIOD THAT OCCURS AFTER THE DATE ON
WHICH SUCH REGISTRATION DEFAULT OCCURS UP TO A MAXIMUM ADDITIONAL INTEREST RATE
OF 1.00%) FROM AND INCLUDING THE DATE ON WHICH ANY SUCH REGISTRATION DEFAULT
SHALL OCCUR TO BUT EXCLUDING THE DATE ON WHICH ALL REGISTRATION DEFAULTS HAVE
BEEN CURED.](1) The Company will pay interest semiannually on February 15 and
August 15 of each year, commencing [ ]. Interest on the Securities will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from [ ]. Interest will be computed on the basis
of a 360-day year of twelve 30-day months. The Company will pay interest on
overdue principal at the rate borne by the Securities plus 1% per annum, and it
will pay interest on overdue installments of interest at the same rate to the
extent lawful.
2. METHOD OF PAYMENT
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the February 1 or August 1 next preceding the interest payment
date even if Securities are canceled 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. Payments in respect of the Securities
----------
(1) Insert if at the date of issuance of the Exchange Security or Private
Exchange Security, as the case may be, any Registration Default has occurred
with respect to the related Initial Securities during the interest period in
which such date of issuance occurs.
4
represented by a Global Security (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. The Company will make all payments in
respect of a certificated Security (including principal, premium and interest)
by mailing a check to the registered address of each Holder thereof; PROVIDED,
HOWEVER, that payments on a certificated Security will be made by wire transfer
to a U.S. dollar account maintained by the payee with a bank in the United
States if such Holder elects payment by wire transfer by giving written notice
to the Trustee or the Paying Agent to such effect designating such account no
later than 30 days immediately preceding the relevant due date for payment (or
such other date as the Trustee may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, X.X. Xxxxxx Trust Company, National Association, a
banking association (the "Trustee"), will act as Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as of
February 19, 2002 ("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"). Terms
defined in the Indenture 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.
The Securities are general unsecured obligations of the Company. The
Company shall be entitled to issue Additional Securities pursuant to Section
2.13 of the Indenture. The Initial Securities issued on the Issue Date, any
Additional Securities and all Exchange Securities or Private Exchange Securities
issued in exchange therefor will be treated as a single class for all purposes
under the Indenture. The Indenture contains covenants that limit the ability of
the Company and its Principal Subsidiaries to create liens on assets
5
and engage in Sale and Leaseback Transactions. These covenants are subject to
important exceptions and qualifications.
5. OPTIONAL REDEMPTION
The Securities are subject to redemption, in whole or in part, at
the option of the Company, at any time at a redemption price equal to the
greater of (1) 100% of the principal amount of the Securities being redeemed
plus accrued and unpaid interest to the redemption date or (2) the Make-Whole
Amount for the Securities being redeemed.
"Make Whole Amount" means the sum, as determined by a Quotation
Agent, of the present values of the principal amount of the Securities to be
redeemed, together with scheduled payments of interest (exclusive of interest to
the redemption date) from the redemption date to the maturity date of the
Securities being redeemed, in each case discounted to the redemption date on a
semi-annual basis, assuming a 360-day year consisting of twelve 30-day months,
at the Adjusted Treasury Rate, plus accrued and unpaid interest on the principal
amount of the Securities being redeemed to the redemption date.
"Adjusted Treasury Rate" means, with respect to any redemption date,
(i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States 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 remaining term of the Securities of the
series being redeemed, 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 (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per year equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date, in each case calculated on the third
Business Day preceding the redemption date, plus 0.50%.
6
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to the
remaining term from the redemption date to the maturity date of the Securities
being 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 the Securities.
"Comparable Treasury Price" means, with respect to any redemption
date, if clause (ii) of the Adjusted Treasury Rate is applicable, the average of
three, or such lesser number as is obtained by the Trustee, Reference Treasury
Dealer Quotations for such redemption date.
"Quotation Agent" means the Reference Treasury Dealer selected by
the Company.
"Reference Treasury Dealer" means Credit Suisse First Boston
Corporation and its successors and assigns, and two other nationally recognized
investment banking firms selected by the Company that are primary U.S.
Government securities dealers.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount, quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities in denominations larger than
$1,000 principal amount may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued interest
on all Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7
7. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in
denominations of $1,000 principal amount 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 register the transfer of
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
8. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the owner
of it for all purposes.
9. 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.
10. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time shall be
entitled to 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
Obligations for the payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
11. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture and the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Securities. Subject to certain
8
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee shall be entitled to amend the
Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
or to add guarantees with respect to the Securities or to secure the Securities,
or to add additional covenants 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.
12. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities, upon redemption pursuant to paragraph 5 of the
Securities, upon acceleration or otherwise; (iii) failure by the Company to
comply with other agreements in the Indenture or the Securities, in certain
cases subject to notice and lapse of time; (iv) certain accelerations of other
Indebtedness of the Company if the amount accelerated (or so unpaid) exceeds
$20.0 million (or, under certain conditions, $50.0 million); (v) failure by the
Company or any Subsidiary to pay at maturity at least $20.0 million (or, under
certain circumstances, $50.0 million) of other Indebtedness, subject to notice;
and (vi) certain events of bankruptcy or insolvency with respect to the Company
and its Subsidiaries.
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 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 (except a Default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders.
13. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, 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
9
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.
14. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the
Company or the Trustee 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.
15. AUTHENTICATION
This Security shall not be valid until an authorized signatory of
the Trustee (or an Authenticating Agent) manually signs the certificate of
authentication on the other side of this Security.
16. 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
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
17. 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.
[18. HOLDERS' COMPLIANCE WITH REGISTRATION RIGHTS AGREEMENT
EACH HOLDER OF A SECURITY, BY ACCEPTANCE HEREOF, ACKNOWLEDGES AND
AGREES TO THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT, INCLUDING THE
OBLIGATIONS OF THE HOLDERS WITH
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RESPECT TO A REGISTRATION AND THE INDEMNIFICATION OF THE COMPANY TO THE EXTENT
PROVIDED THEREIN.](2)
19. GOVERNING LAW
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Securityholder upon written request
and without charge to the Security holder a copy of the Indenture which has in
it the text of this Security in larger type. Requests may be made to:
Xxxxxx International Industries, Incorporated
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxx, Treasurer
----------
(2) Delete if this Security is not being issued in exchange for an Initial
Security.
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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: ____________________
___________________________________________________________
Sign exactly as your name appears on the other side of this Security.
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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:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal amount in Principal amount this Global Security authorized officer
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
