EXHIBIT 4.1
EXECUTION COPY
XXXX XX INDUSTRIES, INC., as Issuer
and
MARINE MIDLAND BANK, as Trustee
--------------------------------------
INDENTURE
Dated as of August 11, 1997
-----------------------------------------
$250,000,000
7 1/2% Senior Subordinated Notes due 2007
CROSS REFERENCE TABLE1
TIA Indenture
Section Section
310 (a)(1).............................................. 7.10
(a)(2).............................................. 7.10
(a)(3).............................................. N.A.2
(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)................................................. 11.03
(c)................................................. 11.03
313(a).................................................. 7.06
(b)(1).............................................. N.A.
(b)(2).............................................. 7.06
(c)................................................. 11.02
(d)................................................. 7.06
314(a)................................................. 4.02; 11.02
(c)(1).............................................. 11.04
(c)(2).............................................. 11.04
(c)(3).............................................. N.A.
(e)................................................. 10.05
(f)................................................. 4.03
315(a).................................................. 7.01
(b).................................................7.05; 11.02
(c)................................................. 7.01
(e)................................................. 6.11
316(a)(last sentence)................................... 2.08
(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).................................................. 11.01
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1 Note: This Cross Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
2 N.A. means Not Applicable.
INDENTURE, dated as of August 11, 1997 between Xxxx XX Industries,
Inc., a Delaware corporation ("Xxxx XX" or the "Company"), and Marine Midland
Bank, a New York banking corporation and trust company (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders (as defined below) of Xxxx IV's
7 1/2% Senior Subordinated Notes due 2007 (the "Series A Notes") and the new 7
1/2% Senior Subordinated Notes due 2007 to be issued in exchange for the Series
A Notes (the "Series B Notes" and, together with the Series A Notes, the
"Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Additional Interest" means, with respect to any Securities, all
unpaid additional interest owing by the Company pursuant to Section 5 of the
Registration Rights Agreement for such Securities.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. A Person shall be deemed to "control"
(including the correlative meanings, the terms "controlling," "controlled by,"
and "under common control with") another Person if the controlling Person (i)
possesses, directly or indirectly, the power to direct or cause the direction of
the management or policies of the controlled Person, whether through ownership
of voting securities, by agreement or otherwise, or (ii) owns, directly or
indirectly, 10% or more of any class of the issued and outstanding equity
securities of the controlled Person.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial interests in a Global Note, the rules and procedures of
the Depositary that apply to such transfer and exchange.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banking institutions in New York or the city in which the principal
corporate trust office of the Trustee is located are required to close.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
which would at such time be so required to be capitalized on the balance sheet
in accordance with GAAP.
"Cedel" means Cedel Bank, societe anonyme.
"Credit Agreement" means the Amended and Restated Credit and Guarantee
Agreement, dated as of March 8, 1996, as amended from time to time, by and among
the Company and Dayco PTI S.p.A., as Borrowers, and certain other subsidiaries
of the Company, as Guarantors, The Chase Manhattan Bank, as Administrator and
Bid Agent, Bank of America National Trust and Savings Association, as
Documentation Agent, and the banks and other financial institutions that are
signatories thereto, and any refinancings or replacements thereof providing for
Indebtedness in principal amount of up to $500,000,000, less, in the case of any
such refinancings or replacements, the amount of all permanent reductions
thereunder.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Notes" means Securities that are in the form of EXHIBIT
A-1 attached hereto (but without including the text referred to in footnotes 1
and 3 thereto).
"Depositary" means, with respect to the Securities issuable or issued
in whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Securities, until a successor shall have
been appointed and become such pursuant to Section 2.06 of this Indenture, and,
thereafter, "Depositary" shall mean or include such successor.
"8 3/4% Notes" means the Company's 8 3/4% Senior Subordinated Notes
due April 1, 2003 issued pursuant to the Indenture, dated as of March 15, 1993,
between the Company and Citibank, N.A., as trustee.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, the
Brussels office, as operator of the Euroclear system.
"Exchange Offer" means the offer which may be made by the Company
pursuant to the Registration Rights Agreement to exchange the Series A Notes for
the Series B Notes.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession,
from time to time.
"Global Notes" means the Rule 144A Global Notes, the Regulation S
Temporary Global Notes and the Regulation S Permanent Global Notes.
"Holder" means a Person in whose name a Security is registered on the
Registrar's books.
"Indebtedness" of any Person means any indebtedness, contingent or
otherwise, in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement obligations with respect thereto) or
representing the balance deferred and unpaid of the purchase price of any
property (including pursuant to Capital Lease Obligations), if and to the extent
any of the foregoing indebtedness would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP (except that any such
balance that constitutes a trade payable and/or an accrued liability arising in
the ordinary course of business shall not be considered Indebtedness), and shall
also include, to the extent not otherwise included, any Capital Lease
Obligations, the maximum fixed repurchase price of any Redeemable Stock,
indebtedness secured by a Lien to which the property or assets owned or held by
such Person is subject, whether or not the obligations secured thereby shall
have been assumed, guarantees of items that would be included within this
definition to the extent of such guarantees (exclusive of whether such items
would appear upon such balance sheet), and net liabilities in respect of
Interest Rate Protection Obligations. For purposes of the preceding sentence,
the maximum fixed repurchase price of any Redeemable Stock which does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Redeemable Stock as if such Redeemable Stock were repurchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Indenture, provided that if such Redeemable Stock is not then permitted to be
repurchased, the repurchase price shall be the book value of such Redeemable
Stock. The amount of Indebtedness of any Person at any date shall be, without
duplication, (i) the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability of any such contingent
obligations at such date and (ii) in the case of Indebtedness of others secured
by a Lien to which the property or assets owned or held by such Person is
subject, the lesser of the fair market value at such date of any asset subject
to a Lien securing the Indebtedness of others and the amount of the Indebtedness
secured.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Institutional Accredited Investor" means an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"interest" means interest due on the Securities plus any Additional
Interest due on the Securities, if any, pursuant to Section 5 of the
Registration Rights Agreement.
"Interest Rate Protection Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include without limitation, interest rate swaps, caps,
floors, collars and similar agreements.
"Note Custodian" means the Trustee, when serving as custodian for the
Depositary with respect to the Securities in global form, or any successor
entity thereto.
"Officer" means, with respect to any corporation, the Chairman of the
Board, any Vice Chairman, the President, any Vice President, the Treasurer, the
Secretary, any Assistant Treasurer or any Assistant Secretary of such
corporation.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 11.04 and 11.05, signed in the name of Xxxx XX
by any two of its Officers, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 11.04 and 11.05, rendered by legal counsel who
is acceptable to the Trustee.
"Participant" means, with respect to DTC, Euroclear or Cedel, a Person
who has an account with DTC, Euroclear or Cedel, respectively (and, with respect
to DTC, shall include Euroclear and Cedel).
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Private Placement Legend" means the legend initially set forth on the
Series A Notes in the form set forth in Section 2.06(g) hereof.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act.
"Redeemable Stock" means any capital stock or other equity interest
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable before the stated maturity of the
Securities), or upon the happening of any event, matures or is mandatorily
redeemable, in whole or in part, prior to the stated maturity of the Securities.
"Registration Rights Agreement" means the Registration Rights
Agreement dated August 11, 1997 between the Initial Purchaser and the Company,
as such agreement may be amended, modified or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Notes" means the Regulation S Temporary Global
Notes or the Regulation S Permanent Global Notes as applicable.
"Regulation S Permanent Global Notes" means the permanent global notes
that do not contain the paragraphs referred to in footnote 1 to the form of the
Security attached hereto as EXHIBIT A-2, and that are deposited with and
registered in the name of the Depositary or its nominee, representing a Security
sold in reliance on Regulation S.
"Regulation S Temporary Global Notes" means the temporary global notes
that contain the paragraphs referred to in footnote 1 to the form of the
Security attached hereto as EXHIBIT A-2, and that are deposited with and
registered in the name of the Depositary or its nominee, representing a Security
sold in reliance on Regulation S.
"Restricted Beneficial Interest" means any beneficial interest of a
Participant or Indirect Participant in the Rule 144A Global Note or the
Regulation S Global Note.
"Restricted Global Notes" means the Rule 144A Global Notes and the
Regulation S Global Notes, all of which shall bear the Private Placement Legend.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Notes" means the permanent global notes that contain
the paragraph referred to in footnote 1 and the additional schedule referred to
in footnote 3 to the form of the Security attached hereto as EXHIBIT A-1, and
that is deposited with and registered in the name of the Depositary or its
nominee, representing a Security sold in reliance on Rule 144A or to a limited
number of Institutional Accredited Investors.
"SEC" means the Securities and Exchange Commission.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on any Indebtedness of the Company, whether outstanding on the date of
the Indenture or thereafter created, incurred, assumed or guaranteed, unless, in
the case of any particular Indebtedness, the instrument under which such
Indebtedness is created, incurred, assumed or guaranteed expressly provides that
such Indebtedness shall not be senior or superior in right of payment to the
Securities. Without limiting the generality of the foregoing, "Senior
Indebtedness" shall include the principal of, premium, if any, and interest on
all obligations of every nature of the Company from time to time owed to the
lenders under the Credit Agreement, including, without limitation, principal of
and interest on, and all fees and expenses payable under the Credit Agreement.
Notwithstanding anything to the contrary contained in this Indenture or the
Securities, "Senior Indebtedness" shall not include any Indebtedness represented
by the 83/4% Notes or the 73/4% Notes.
"Senior Subordinated Indebtedness" means Indebtedness (i) represented
by the 83/4% Notes and the 73/4% Notes and (ii) any other Indebtedness which is
PARI PASSU with the Securities and expressly provides that it is subordinated to
Senior Indebtedness.
"7 3/4% Notes" means the Company's 7 3/4% Senior Subordinated Notes
due April 1, 2006 issued pursuant to the Indenture, dated as of March 11, 1996,
between the Company and Fleet National Bank, as trustee.
"Subsidiary" means any corporation, association or other business
entity of which more than 50% of the total voting power of shares of capital
stock or other equity interest 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 any Person or one
or more of the other Subsidiaries of that Person or a combination thereof.
"TIA" means the Trust Indenture Act of 1939 as amended and as in
effect on the date of this Indenture; provided, however, that in the event the
TIA is amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth in Section 2.06(g).
"Trust Officer," when used with respect to the Trustee, means any
officer in the Corporate Trust Administration Department of the Trustee with
direct responsibility for the administration of this Indenture and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"Unrestricted Global Notes" means one or more Global Notes that do not
and are not required to bear the Private Placement Legend.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
TERM SECTION
"Act" ................................... 1.05
"Bankruptcy Law".................................... 6.01
"Custodian"......................................... 6.01
"DTC" ......................................... 2.03
"Event of Default".................................. 6.01
"Exchange Act"...................................... 4.02
"Legal Holiday"..................................... 11.08
"Non-Payment Default"............................... 10.03
"Notice of Default"................................. 6.01
"Paying Agent"...................................... 2.03
"Payment Default"................................... 10.03
"Register".......................................... 2.03
"Registrar"......................................... 2.03
"Securities Act".................................... 7.04
"U.S. Government Obligations"....................... 8.01
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"Indenture securities" means the Securities.
"Indenture security holder" means a Holder.
"Indenture to be qualified" means this Indenture.
"Indenture trustee" or "institutional trustee" means the Trustee.
"Obligor" on the indenture securities means Xxxx XX.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
SECTION 1.05. ACTS OF HOLDERS.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to Xxxx XX. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and Xxxx XX, if made in the
manner provided in this Section.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(3) The ownership of Securities shall be proved by the Register.
(4) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or Xxxx
XX in reliance thereon, whether or not notation of such action is made upon such
Security.
(5) If Xxxx XX shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, Xxxx XX may at
its option, by or pursuant to a resolution of its board of directors, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but Xxxx XX shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders' of the requisite
proportion of outstanding Securities have authorized or agreed or consented to
such request demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of EXHIBIT A-1
and EXHIBIT A-2 attached hereto. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. The form of the
Securities and any notation, legend or endorsement shall be in a form acceptable
to Xxxx XX and the Trustee. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture. To the extent
applicable, Xxxx XX and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
(a) GLOBAL NOTES. Securities offered and sold to QIBs in reliance on
Rule 144A shall be issued initially in the form of Rule 144A Global Notes, which
shall be deposited on behalf of the purchasers of the Securities represented
thereby with the Note Custodian, and registered in the name of the Depositary or
a nominee of the Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the Rule
144A Global Notes may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary or its nominee as
hereinafter provided.
Securities offered and sold in reliance on Regulation S shall be
issued initially in the form of the Regulation S Temporary Global Note, which
shall be deposited on behalf of the purchasers of the Securities represented
thereby with the Note Custodian, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Cedel, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The "40- DAY RESTRICTED PERIOD" (as defined
in Regulation S) shall be terminated upon the receipt by the Trustee of (i) a
written certificate from the Depositary, together with copies of certificates
from Euroclear and Cedel certifying that they have received certification of
non-United States beneficial ownership of 100% of the aggregate principal amount
of the Regulation S Temporary Global Notes (except to the extent of any
beneficial owners thereof who acquired an interest therein pursuant to another
exemption from registration under the Securities Act and who will take delivery
of a beneficial ownership interest in a Rule 144A Global Note, all as
contemplated by Section 2.06(a)(ii) hereof), and (ii) an Officers' Certificate
from the Company certifying as to the same matters covered in clause (i) above.
Following the termination of the 40-day restricted period, beneficial interests
in the Regulation S Temporary Global Note shall be exchanged for beneficial
interests in Regulation S Permanent Global Notes pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S Permanent
Global Notes, the Trustee shall cancel the Regulation S Temporary Global Notes.
The aggregate principal amount of the Regulation S Temporary Global Notes and
the Regulation S Permanent Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee, as the case may be, in connection with transfers of interests as
hereinafter provided.
Each Global Note shall represent such of the outstanding Securities as
shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Securities from time to time endorsed thereon
and that the aggregate amount of outstanding Securities represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and transfers of interests. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the amount of outstanding Securities
represented thereby shall be made by the Trustee or the Note Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations" and "Instructions to Participants" of Cedel shall be applicable to
interests in the Regulation S Temporary Global Notes and the Regulation S
Permanent Global Notes that are held by Participants through Euroclear or Cedel.
The Trustee shall have no obligation to notify Holders of any such procedures or
to monitor or enforce compliance with the same.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depositary
or to a successor of the Depositary or its nominee.
(b) BOOK-ENTRY PROVISIONS. This Section 2.01(b) shall apply only to
Rule 144A Global Notes and Regulation S Permanent Global Notes deposited with or
on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(b), authenticate and deliver the Global Notes that (i) shall
be registered in the name of the Depositary or the nominee of the Depositary and
(ii) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instructions or held by the Trustee as Note Custodian.
Participants shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depositary or by the Note
Custodian as custodian for the Depositary or under such Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Participants, the
operation of customary practices of such Depositary governing the exercise of
the rights of an owner of a beneficial interest in any Global Note.
(c) DEFINITIVE NOTES. Securities issued in certificated form shall be
substantially in the form of EXHIBIT A-1 attached hereto (but without including
the text referred to in footnotes 1 and 3 thereto).
SECTION 2.02. EXECUTION AND AUTHENTICATION. The Securities shall be
executed on behalf of Xxxx XX by its Chairman of the Board, one of its Vice
Chairmen, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any such Officer on the Securities may be manual
or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper Officers of Xxxx XX shall bind Xxxx XX,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in EXHIBIT
A-1 or EXHIBIT A-2 annexed hereto duly executed by the Trustee by manual
signature of an authorized signatory, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and made available for delivery hereunder.
The Trustee shall authenticate and make available for delivery
Securities for original issue in the aggregate principal amount of $250,000,000
upon a direction that it do so set forth in an Officers' Certificate of Xxxx XX,
but without any further action by Xxxx XX. 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 and delivered. The aggregate principal
amount of Securities outstanding at any time may not exceed $250,000,000, except
as provided in Section 2.07.
The Trustee shall act as the initial authenticating agent. Thereafter,
the Trustee may appoint an authenticating agent reasonably acceptable to Xxxx XX
to authenticate Securities. An 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 a Paying Agent to deal with Xxxx XX
or an Affiliate of Xxxx XX.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. REGISTRAR AND PAYING AGENT. Xxxx XX shall maintain or
cause to be maintained an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented or surrendered for purchase or payment
("Paying Agent") and an office or agency where notices and demands to or upon
Xxxx XX in respect of the Securities and this Indenture may be served. The
Registrar shall keep a register of the Securities and of their transfer and
exchange (the "Register"). Xxxx XX may have one or more co-registrars and one or
more additional paying agents. The term Paying Agent includes any additional
paying agent.
Xxxx XX shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar (if not the Trustee or Xxxx XX). The
agreement shall implement the provisions of this Indenture that relate to such
agent. Xxxx XX shall notify the Trustee of the name and address of any such
agent. If Xxxx XX fails to maintain a Registrar, Paying Agent or agent for
service of notices or demands, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. Xxxx XX
or any Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar or co-registrar or agent for service of notices and demands.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. Except as otherwise
provided herein, prior to each due date of the principal and interest on any
Security, Xxxx XX shall deposit with the Paying Agent a sum of money sufficient
to pay such principal and interest so becoming due. Xxxx XX shall require each
Paying Agent (other than the Trustee or Xxxx XX) to agree in writing that such
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal and interest on the
Securities (whether such money has been paid to it by Xxxx XX or any other
obligor on the Securities) and shall notify the Trustee of any default by Xxxx
XX (or any other obligor on the Securities) in making any such payment. At any
time during the continuance of any such default, the Paying Agent shall, upon
the request of the Trustee, forthwith pay to the Trustee all money so held in
trust and account for any money disbursed by it. Xxxx XX at any time may require
a Paying Agent to pay all money held by it to the Trustee and to account for any
money disbursed by it. Upon doing so, the Paying Agent shall have no further
liability for the money so paid over to the Trustee. If Xxxx XX, a Subsidiary or
an Affiliate of either of them acts as Paying Agent, it shall segregate the
money held by it as Paying Agent and hold it as a separate trust fund.
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 Holders. If the Trustee is not the Registrar, Xxxx
XX shall cause to be furnished to the Trustee not more than five days after each
record date and at such other times as the Trustee may request in writing,
within five Business Days of such request, a list in such form as the Trustee
may reasonably require of the names and addresses of Holders.
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and exchange
of beneficial interests in Global Notes shall be effected through the
Depositary, in accordance with this Indenture and the procedures of the
Depositary therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Beneficial
interests in a Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the legend in subsection
(g) of this Section 2.06. Transfers of beneficial interests in the Global Notes
to Persons required to take delivery thereof in the form of an interest in
another Global Note shall be permitted as follows:
(i) RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE. If, at any time, an
owner of a beneficial interest in a Rule 144A Global Note deposited with
the Depositary (or the Trustee as Note Custodian) wishes to transfer its
beneficial interest in such Rule 144A Global Note to a Person who is
required or permitted to take delivery thereof in the form of an interest
in a Regulation S Global Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Regulation S Global Note as provided in
this Section 2.06(a)(i). Upon receipt by the Trustee of (1) instructions
given in accordance with the Applicable Procedures from a Participant
directing the Trustee to credit or cause to be credited a beneficial
interest in the Regulation S Global Note in an amount equal to the
beneficial interest in the Rule 144A Global Note to be exchanged, (2) a
written order given in accordance with the Applicable Procedures containing
information regarding the Participant account of the Depositary and the
Euroclear or Cedel account to be credited with such increase, and (3) a
certificate in the form of EXHIBIT B-1 hereto given by the owner of such
----------- beneficial interest stating that the transfer of such interest
has been made in compliance with the transfer restrictions applicable to
the Global Notes and pursuant to and in accordance with Rule 903 or Rule
904 of Regulation S, then the Trustee, as Registrar, shall instruct the
Depositary to reduce or cause to be reduced the aggregate principal amount
at maturity of the applicable Rule 144A Global Note and to increase or
cause to be increased the aggregate principal amount at maturity of the
applicable Regulation S Global Note by the principal amount at maturity of
the beneficial interest in the Rule 144A Global Note to be exchanged or
transferred, to credit or cause to be credited to the account of the Person
specified in such instructions, a beneficial interest in the Regulation S
Global Note equal to the reduction in the aggregate principal amount at
maturity of the Rule 144A Global Note, and to debit, or cause to be
debited, from the account of the Person making such exchange or transfer
the beneficial interest in the Rule 144A Global Note that is being
exchanged or transferred.
(ii) REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE. If, at any time, after
the expiration of the 40-day restricted period, an owner of a beneficial
interest in a Regulation S Global Note deposited with the Depositary or
with the Trustee as Note Custodian wishes to transfer its beneficial
interest in such Regulation S Global Note to a Person who is required or
permitted to take delivery thereof in the form of an interest in a Rule
144A Global Note, such owner shall, subject to the Applicable Procedures,
exchange or cause the exchange of such interest for an equivalent
beneficial interest in a Rule 144A Global Note as provided in this Section
2.06(a)(ii). Upon receipt by the Trustee of (1) instructions from Euroclear
or Cedel, if applicable, and the Depositary, directing the Trustee, as
Registrar, to credit or cause to be credited a beneficial interest in the
Rule 144A Global Note equal to the beneficial interest in the Regulation S
Global Note to be exchanged, such instructions to contain information
regarding the Participant account with the Depositary to be credited with
such increase, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of the
Depositary and (3) a certificate in the form of EXHIBIT B-2 -----------
attached hereto given by the owner of such beneficial interest stating (A)
if the transfer is pursuant to Rule 144A, that the Person transferring such
interest in a Regulation S Global Note reasonably believes that the Person
acquiring such interest in a Rule 144A Global Note is a QIB and is
obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable blue sky or securities laws of
any state of the United States, (B) that the transfer complies with the
requirements of Rule 144 under the Securities Act, (C) if the transfer is
to an Institutional Accredited Investor that such transfer is in compliance
with the Securities Act and a certificate in the form of EXHIBIT C attached
hereto and, if such transfer is in respect of an aggregate ---------
principal amount of less than $100,000, an Opinion of Counsel acceptable to
the Company that such transfer is in compliance with the Securities Act or
(D) if the transfer is pursuant to any other exemption from the
registration requirements of the Securities Act, that the transfer of such
interest has been made in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
requirements of the exemption claimed, such statement to be supported by an
Opinion of Counsel from the transferee or the transferor in form reasonably
acceptable to the Company and to the Registrar and in each case, in
accordance with any applicable securities laws of any state of the United
States or any other applicable jurisdiction, then the Trustee, as
Registrar, shall instruct the Depositary to reduce or cause to be reduced
the aggregate principal amount at maturity of such Regulation S Global Note
and to increase or cause to be increased the aggregate principal amount at
maturity of the applicable Rule 144A Global Note by the principal amount at
maturity of the beneficial interest in the Regulation S Global Note to be
exchanged or transferred, and the Trustee, as Registrar, shall instruct the
Depositary, concurrently with such reduction, to credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the applicable Rule 144A Global Note equal to the
reduction in the aggregate principal amount at maturity of such Regulation
S Global Note and to debit or cause to be debited from the account of the
Person making such transfer the beneficial interest in the Regulation S
Global Note that is being exchanged or transferred.
(b) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive Notes
are presented by a Holder to the Registrar with a request to register the
transfer of the Definitive Notes or to exchange such Definitive Notes for an
equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested only
if the Definitive Notes are presented or surrendered for registration of
transfer or exchange, are endorsed and contain a signature guarantee or
accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney and contains a
signature guarantee, duly authorized in writing and the Registrar received the
following documentation (all of which may be submitted by facsimile):
(i) in the case of Definitive Notes that are Transfer Restricted Securities,
such request shall be accompanied by the following additional information
and documents, as applicable:
(A) if such Transfer Restricted Security is
being delivered to the Registrar by a Holder
for registration in the name of such Holder,
without transfer, or such Transfer
Restricted Security is being transferred to
the Company or any of its Subsidiaries, a
certification to that effect from such
Holder (in substantially the form of EXHIBIT
B-3 hereto); or
(B) if such Transfer Restricted Security is
being transferred to a QIB in accordance
with Rule 144A under the Securities Act or
pursuant to an exemption from registration
in accordance with Rule 144 under the
Securities Act or pursuant to an effective
registration statement under the Securities
Act, a certification to that effect from
such Holder (in substantially the form of
EXHIBIT B-3 hereto); or
(C) if such Transfer Restricted Security is
being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule
904 under the Securities Act, a
certification to that effect from such
Holder (in substantially the form of EXHIBIT
B-3 hereto);
(D) if such Transfer Restricted Security is
being transferred to an Institutional
Accredited Investor in reliance on an
exemption from the registration requirements
of the Securities Act other than those
listed in subparagraphs (B) and (C) above, a
certification to that effect from such
Holder (in substantially the form of EXHIBIT
B-3 hereto), a certification substantially
in the form of EXHIBIT C hereto, and, if
such transfer is in respect of an aggregate
principal amount of Notes of less
than $100,000, an Opinion of Counsel
acceptable to the Company that
such transfer is in compliance with the
Securities Act; or
(E) if such Transfer Restricted Security is
being transferred in reliance on any other
exemption from the registration requirements
of the Securities Act, a certification to
that effect from such Holder (in
substantially the form of EXHIBIT B-3
hereto) and an Opinion of Counsel from such
Holder or the transferee reasonably
acceptable to the Company and to the
Registrar to the effect that such transfer
is in compliance with the Securities Act.
(c) TRANSFER OF A BENEFICIAL INTEREST IN A RULE 144A GLOBAL NOTE OR REGULATION
S PERMANENT GLOBAL NOTE FOR A DEFINITIVE NOTE.
(i) Any Person having a beneficial interest in a Rule 144A Global Note or
Regulation S Permanent Global Note may upon request, subject to the
Applicable Procedures, exchange such beneficial interest for a Definitive
Note. Upon receipt by the Trustee of written instructions or such other
form of instructions as is customary for the Depositary (or Euroclear or
Cedel, if applicable), from the Depositary or its nominee on behalf of any
Person having a beneficial interest in a Rule 144A Global Note or
Regulation S Permanent Global Note, and, in the case of a Transfer
Restricted Security, the following additional information and documents
(all of which may be submitted by facsimile):
(A) if such beneficial interest is being
transferred to the Person designated by the
Depositary as being the beneficial owner, a
certification to that effect from such
Person (in substantially the form of EXHIBIT
B-4 hereto);
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule
144A under the Securities Act or pursuant to
an exemption from registration in accordance
with Rule 144 under the Securities Act or
pursuant to an effective registration
statement under the Securities Act, a
certification to that effect from the
transferor (in substantially the form of
EXHIBIT B-4 hereto);
(C) if such beneficial interest is being
transferred to an Institutional Accredited
Investor, pursuant to a private placement
exemption from the registration requirements
of the Securities Act (and based on an
opinion of counsel if the Company so
requests), a certification to that effect
from such Holder (in substantially the form
of EXHIBIT B-4 hereto) and a certificate
from the applicable transferee (in
substantially the form of EXHIBIT C hereto);
or
(D) if such beneficial interest is being
transferred in reliance on any other
exemption from the registration requirements
of the Securities Act, a certification to
that effect from the transferor (in
substantially the form of EXHIBIT B-4
hereto) and an Opinion of Counsel from the
transferee or the transferor reasonably
acceptable to the Company and to the
Registrar to the effect that such transfer
is in compliance with the Securities Act,
in which case the Trustee or the Note
Custodian, at the direction of the Trustee,
shall, in accordance with the standing
instructions and procedures existing between
the Depositary and the Note Custodian,
cause the aggregate principal amount of
Rule 144A Global Notes or Regulation S
Permanent Global Notes, as applicable,
to be reduced accordingly and, following
such reduction, the Company
shall execute and, the Trustee shall
authenticate and deliver to the
transferee a Definitive Note in the
appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial interest in a Rule
144A Global Note or Regulation S Permanent Global Note, as applicable,
pursuant to this Section 2.06(c) shall be registered in such names and in
such authorized denominations as the Depositary, pursuant to instructions
from its direct or Indirect Participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered. Following any such issuance of
Definitive Notes, the Trustee, as Registrar, shall instruct the Depositary
to reduce or cause to be reduced the aggregate principal amount at maturity
of the applicable Global Note to reflect the transfer.
(d) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.06), a Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(e) TRANSFER AND EXCHANGE OF A DEFINITIVE NOTE FOR A BENEFICIAL
INTEREST IN A GLOBAL NOTE. A Definitive Note may not be transferred or exchanged
for a beneficial interest in a Global Note.
(f) AUTHENTICATION OF DEFINITIVE NOTES IN ABSENCE OF DEPOSITARY. If at
any time:
(i) the Depositary for the Notes notifies the
Company that the Depositary is unwilling or
unable to continue as Depositary for the
Global Notes and a successor Depositary for
the Global Notes is not appointed by the
Company within 90 days after delivery of
such notice; or
(ii) the Company, at its sole discretion,
notifies the Trustee in writing that it
elects to cause the issuance of Definitive
Notes under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) LEGENDS.
(i) Except as permitted by the following paragraph (ii), (iii) and (iv), each
Security certificate (and all Securities issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the following
form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREUNDER. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREFROM. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) TO A PERSON
WHO 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, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted Security (including any
Transfer Restricted Security represented by a Global Note) pursuant to Rule
144 under the Securities Act or pursuant to an effective registration
statement under the Securities Act:
(A) in the case of any Transfer Restricted
Security that is a Definitive Note, the
Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security
for a Definitive Note that does not bear the
legend set forth in (i) above and rescind
any restriction on the transfer of such
Transfer Restricted Security upon receipt of
a certification from the transferring holder
substantially in the form of EXHIBIT B-4 hereto; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted
Security shall not be required to bear the legend set
forth in (i) above, but shall continue to be subject to
the provisions of Section 2.06(a) and (b) hereof;
PROVIDED, HOWEVER, that with respect to any request for an
exchange of a Transfer Restricted Security that is
represented by a Global Note for a Definitive Note that
does not bear the legend set forth in (i) above, which
request is made in reliance upon Rule 144, the Holder
thereof shall certify in writing to the Registrar that
such request is being made pursuant to Rule 144 (such
certification to be substantially in the form of EXHIBIT
B-4 hereto).
(iii) Upon any sale or transfer of a Transfer Restricted Security (including any
Transfer Restricted Security represented by a Global Note) in reliance on
any exemption from the registration requirements of the Securities Act
(other than exemptions pursuant to Rule 144A or Rule 144 under the
Securities Act) in which the Holder or the transferee provides an Opinion
of Counsel to the Company and the Registrar in form and substance
reasonably acceptable to the Company and the Registrar (which Opinion of
Counsel shall also state that the transfer restrictions contained in the
legend are no longer applicable):
(A) in the case of any Transfer Restricted Security that is a
Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for
a Definitive Note that does not bear the legend set forth
in (i) above and rescind any restriction on the transfer
of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted
Security shall not be required to bear the legend set
forth in (i) above, but shall continue to be subject to
the provisions of Section 2.06(a) and (b) hereof.
(iv) Notwithstanding the foregoing, upon the consummation of the Exchange Offer
in accordance with the Registration Rights Agreement, the Company shall
issue and, upon receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate (i) one or more
Unrestricted Global Notes in aggregate principal amount equal to the
principal amount of the Restricted Beneficial Interests tendered for
acceptance by Persons that are not (x) broker-dealers, (y) Persons
participating in the distribution of the Notes or (z) Persons who are
affiliates (as defined in Rule 144) of the Company and accepted for
exchange in the Exchange Offer and (ii) Definitive Notes that do not bear
the Private Placement Legend in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange
in the Exchange Offer. Concurrently with the issuance of such Notes, the
Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly and the Company shall
execute and the Trustee shall authenticate and deliver to the Persons
designated by the Holders of Definitive Notes so accepted Definitive Notes
in the appropriate principal amount.
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as
all beneficial interests in Global Notes have been exchanged for Definitive
Notes, redeemed, repurchased or cancelled, all Global Notes shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.10 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note, by the Trustee
or the Notes Custodian, at the direction of the Trustee, to reflect such
reduction.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers
and exchanges, the Company shall
execute and the Trustee shall
authenticate Global Notes and
Definitive Notes at the Registrar's
request.
(ii) No service charge shall be made to a
Holder for any registration of
transfer or exchange, but the
Company may require payment of a sum
sufficient to cover any stamp or
transfer tax or similar governmental
charge payable in connection
therewith.
(iii) All Global Notes and Definitive
Notes issued upon any registration
of transfer or exchange of Global
Notes or Definitive Notes shall be
the valid obligations of the
Company, evidencing the same debt,
and entitled to the same benefits
under this Indenture, as the Global
Notes or Definitive Notes
surrendered upon such registration
of transfer or exchange.
(iv) The Registrar shall not be required
to register the transfer of or to
exchange a Security between a record
date and the next succeeding
interest payment date.
(v) Prior to due presentment for the
registration of a transfer of any
Security, the Trustee, any Agent and
the Company may deem and treat the
Person in whose name any Security is
registered as the absolute owner of
such Security for the purpose of
receiving payment of principal of
and interest on such Securities and
for all other purposes, and neither
the Trustee, any Agent nor the
Company shall be affected by notice
to the contrary.
(vi) The Trustee shall authenticate
Global Notes and Definitive Notes in
accordance with the provisions of
Section 2.02 hereof.
SECTION 2.07. REPLACEMENT SECURITIES. If (a) any mutilated Security is
surrendered to Xxxx XX or the Trustee, or (b) Xxxx XX and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to Xxxx XX and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to Xxxx XX or the Trustee that such Security has been acquired
by a bona fide purchaser, Xxxx XX shall execute, and upon its written request,
the Trustee shall authenticate and make available for delivery, in exchange for
any such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by
Xxxx XX pursuant to Section 4.11, Xxxx XX in its discretion may, instead of
issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section 2.07, Xxxx
XX may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant to this Section 2.07 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of Xxxx XX, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen securities.
SECTION 2.08. OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS'
ACTION. Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those referred to in Section 2.07 or purchased by Xxxx XX pursuant
to Section 4.11 and those described in this Section 2.08 as not outstanding. A
Security does not cease to be outstanding because Xxxx XX or an Affiliate
thereof holds the Security; PROVIDED, HOWEVER, that in determining whether the
Holders of the requisite principal amount of Securities have given or concurred
in any request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by Xxxx XX, any other obligor upon the Securities or
any Affiliate of Xxxx XX or such other obligor shall be disregarded and deemed
not to be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows based upon an
examination of the Register to be so owned shall be so disregarded. Subject to
the foregoing, only Securities outstanding at the time of such determination
shall be considered in any such determination (including determinations pursuant
to Articles 7 and 10).
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than Xxxx XX) holds, in accordance with
this Indenture, at maturity, money sufficient to pay the Securities payable on
that date, then immediately on the date of maturity such Securities shall cease
to be outstanding and interest, if any, on such Securities shall cease to
accrue.
SECTION 2.09. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities, Xxxx XX may execute, and upon written request from Xxxx
XX signed by two Officers of Xxxx XX, the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the Officers of Xxxx XX executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, Xxxx XX will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of Xxxx XX designated for such purpose pursuant to Section 2.03,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, Xxxx XX shall execute and the Trustee, upon written
request of Xxxx XX signed by two Officers of Xxxx XX, shall authenticate and
make available for delivery in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 2.10. CANCELLATION. All Securities surrendered for payment,
purchase by Xxxx XX, redemption by Xxxx XX pursuant to Article 4, or
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. Xxxx XX may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and made available for delivery hereunder
which Xxxx XX may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly cancelled by the Trustee. Xxxx XX may not reissue,
or, except as expressly permitted by this Indenture, issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 2.10, except as expressly permitted by
this Indenture. All cancelled Securities held by the Trustee shall be destroyed
by the Trustee and a certificate of destruction delivered to Xxxx XX.
SECTION 2.11. CUSIP NUMBERS. Xxxx XX, in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and the Trustee shall use CUSIP
numbers in notices of redemption or exchange as a convenience to Holders;
PROVIDED that any such notice shall state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or exchange and that reliance may be
placed only on the other identification numbers printed on the Securities and
any redemption shall not be affected by any defect in or omission of such
numbers.
SECTION 2.12. DEFAULTED INTEREST. If Xxxx XX defaults in a payment of
interest on the Securities, it shall pay the defaulted interest, plus (to the
extent lawful) any interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, and such special record
date, as used in this Section 2.12 with respect to the payment of any defaulted
interest, shall mean the 15th day next preceding the date fixed by Xxxx XX for
the payment of defaulted interest, whether or not such day is a Business Day. At
least 20 days before the subsequent special record date, Xxxx XX shall mail to
the Trustee a notice that states the subsequent special record date, the payment
date and the amount of defaulted interest to be paid. At least 15 days before
the subsequent special record date, Xxxx XX shall mail to each Holder a notice
that states the subsequent special record date, the payment date and the amount
of defaulted interest to be paid. Xxxx XX may also pay defaulted interest in any
other lawful manner.
ARTICLE 3
REDEMPTION
SECTION 3.01. NO REDEMPTION. The Securities shall not be redeemable by
the Company, in whole or in part, prior to their stated maturity.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. Xxxx XX shall pay the principal
of and interest (including interest accruing on or after the filing of a
petition in bankruptcy or reorganization relating to Xxxx XX, whether or not a
claim for post-filing interest is allowed in such proceeding) on the Securities
on (or prior to) the dates and in the manner provided in the Securities or
pursuant to this Indenture. An installment of principal and interest shall be
considered paid on the applicable date due if on such date the Trustee or the
Paying Agent holds, in accordance with this Indenture, money sufficient to pay
all of such installment then due. Xxxx XX shall pay interest on overdue
principal and interest on overdue installments of interest (including interest
accruing on or after the filing of a petition in bankruptcy or reorganization
relating to Xxxx XX whether or not a claim for post-filing interest is allowed
in such proceeding), to the extent lawful, at the rate per annum borne by the
Securities, which interest on overdue interest shall accrue from the date such
amounts became overdue.
SECTION 4.02. SEC REPORTS.
(1) Xxxx XX shall file with the Trustee and supply to each Holder,
without cost, within 15 days after it files the same with the SEC, copies of its
annual and quarterly reports, information, documents and other reports, (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which it is required to file with the SEC pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). In the event that Xxxx XX is at any time not subject to the
reporting requirements of the Exchange Act, it shall provide to the Trustee and
supply to each Holder without cost, within 15 days after it would have been
required to file such information with the SEC, financial statements, including
any notes thereto and, with respect to annual reports, an auditors' report by an
accounting firm of established national reputation and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations," both
comparable to that which Xxxx XX would have been required to include in such
annual reports, information, documents or other reports if Xxxx XX had been
subject to the requirements of such Sections 13 or 15(d) of the Exchange Act.
Xxxx XX also shall comply with the other provisions of TIA Section 314(a).
(2) So long as any Securities remain outstanding, Xxxx XX shall cause
its annual report to stockholders and any other financial reports furnished by
it to stockholders generally, to be mailed to the Holders at their addresses
appearing in the register of Securities maintained by the Registrar in each case
at the time of such mailing or furnishing to stockholders. If Xxxx XX is not
required to furnish annual or quarterly reports to its stockholders pursuant to
the Exchange Act, Xxxx XX shall cause its financial statements, including any
notes thereto and with respect to annual reports, an auditors' report by an
accounting firm of established national reputation and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations," to be
so filed with the Trustee and mailed to the Holders within 120 days after the
end of each of Xxxx IV's fiscal years and within 60 days after the end of each
of the first three quarters of each fiscal year.
(3) Xxxx XX shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information that Xxxx XX may be
required to deliver to the Holders under this Section 4.02.
SECTION 4.03. COMPLIANCE CERTIFICATES.
(1) Xxxx XX shall deliver to the Trustee within 90 days after the end
of each of Xxxx IV's fiscal years a certificate containing a certification from
the principal executive officer, principal financial officer or principal
accounting officer of Xxxx XX as to his or her knowledge of Xxxx IV's compliance
with all conditions and covenants under this Indenture. For purposes of this
Section 4.03(l), such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture. If they
do know of such a Default or Event of Default, the certificate shall describe
any such Default or Event of Default and its status. Such certificate need not
comply with Sections 11.04 and 11.05.
(2) So long as not contrary to the then current recommendation of the
American Institute of Certified Public Accountants, Xxxx XX shall deliver to the
Trustee within 120 days after the end of each fiscal year a written statement by
Xxxx IV's independent certified public accountants stating (A) that their audit
examination has included a review of the terms of this Indenture and the
Securities as they relate to accounting matters, and (B) whether, in connection
with their audit examination, any Default has come to their attention and, if
such a Default has come to their attention, specifying the nature and period of
the existence thereof; PROVIDED, HOWEVER, that the independent certified public
accountants delivering such statement shall not be liable in respect of such
statement by reason of any failure to obtain knowledge of any such Default or
Event of Default that would not be disclosed in the course of an audit
examination conducted in accordance with GAAP.
(3) Xxxx XX shall deliver to the Trustee as soon as possible and in
any event within 15 days after Xxxx XX becomes aware of the occurrence of each
Default or Event of Default, which is continuing, an Officers' Certificate
(which need not comply with Sections 11.04 and 11.05) setting forth the details
of such Default or Event of Default, and the action which Xxxx XX proposes to
take with respect thereto.
SECTION 4.04. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, Xxxx XX 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 purposes of this Indenture.
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY. Xxxx XX shall maintain
or cause to be maintained, within the Borough of Manhattan, the City of New
York, an office or agency of the Trustee, Registrar and Paying Agent where
securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer, exchange or redemption and where
notices and demands to or upon Xxxx XX in respect of the Securities and this
Indenture may be served. The office or agency of the Trustee at the address
specified in Section 11.02 shall initially be such office or agency for all of
the aforesaid purposes. Xxxx XX shall give prompt written notice to the Trustee
of any change of location of such office or agency. If at any time Xxxx XX shall
fail to maintain or cause to be maintained any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02.
Xxxx XX may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations. Xxxx XX shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in location of any such other office or agency.
SECTION 4.06. ANTI-LAYERING. The Company shall not incur, create,
issue, assume, guarantee or otherwise become liable for any Indebtedness that is
subordinate or junior in right of payment to any Senior Indebtedness and senior
in any respect in right of payment to the Securities, including having a stated
maturity earlier than the Securities.
SECTION 4.07. PAYMENT OF TAXES AND OTHER CLAIMS. Xxxx XX shall pay or
discharge or cause to be paid or discharged, before any penalty accrues thereon,
(i) all material taxes, assessments and governmental charges levied or imposed
upon Xxxx XX or any Subsidiary thereof upon the income, profits or property of
Xxxx XX or any Subsidiary thereof and (ii) all material lawful claims for labor,
materials and supplies which, if unpaid, would by law become a lien upon the
property of Xxxx XX or any Subsidiary thereof; PROVIDED that none of Xxxx XX or
any Subsidiary thereof shall be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claims the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate provision has been made or where
the failure to effect such payment or discharge is not adverse in any material
respect to the Holders.
SECTION 4.08. CORPORATE EXISTENCE. Subject to Article 5, Xxxx XX will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the corporate, partnership or other
existence of any of its Subsidiaries in accordance with the respective
organizational documents of such Subsidiary and the rights (charter and
statutory), licenses and franchises of Xxxx XX and its Subsidiaries; PROVIDED,
HOWEVER, that Xxxx XX shall not be required to preserve any such right, license
or franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if the board of directors of Xxxx XX shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
Xxxx XX and its Subsidiaries taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders.
SECTION 4.09. MAINTENANCE OF PROPERTIES AND INSURANCE. Xxxx XX shall
cause all material properties owned by or leased to it or any of its
Subsidiaries and used or useful in the conduct of its business or the business
of such Subsidiary to be maintained and kept in normal condition, repair and
working order and supplied with all necessary equipment and shall cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of Xxxx XX may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; PROVIDED, HOWEVER, that nothing in this Section 4.09 shall prevent
Xxxx XX or any Subsidiary thereof from discontinuing the maintenance of any such
properties, if such discontinuance is desirable in the conduct of its business
or the business of such Subsidiary.
Xxxx XX shall provide or cause to be provided, for itself and any of
its Subsidiaries, insurance (including appropriate self-insurance) against loss
or damage of the kinds customarily insured against by corporations similarly
situated and owning like properties, including, but not limited to, public
liability insurance, with reputable insurers in such amounts with such
deductibles and by such methods as shall be customary for corporations similarly
situated in the industry.
SECTION 4.10. STAY, EXTENSION AND USURY LAWS. Xxxx XX covenants (to
the extent it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
enforce, which may affect the covenants or the performance of this Indenture;
and Xxxx XX (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law has been enacted.
SECTION 4.11. INVESTMENT COMPANY ACT. Xxxx XX shall not become an
investment company subject to registration under the Investment Company Act of
1940, as amended.
SECTION 4.12. RULE 144A INFORMATION REQUIREMENT. The Company will
furnish to the Holders or beneficial holders of the Securities and prospective
purchasers of the Securities designated by the holders of Transfer Restricted
Securities, upon the request of such Holders or beneficial holders, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act until such time as the Company consummates the Exchange Offer or
has registered the Securities for resale under the Securities Act.
SECTION 4.13. NOTICE OF REGISTRATION DEFAULT. The Company will notify
the Trustee of the existence of any event under the Registration Rights
Agreement which gives rise to Additional Interest under Section 5 thereof and of
the amount of Additional Interest payable as a result of such event. Unless and
until the Trustee receives such notice, it may assume that no such event exists
and that Additional Interest is not payable by the Company.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF SUBSTANTIALLY ALL OF
THE ASSETS. Xxxx XX, without the consent of the Holders of Securities then
outstanding, may consolidate or merge with or into, or convey, transfer or lease
its properties and assets substantially as an entirety to any Person which is a
corporation, partnership or trust organized and validly existing under the laws
of any domestic jurisdiction, provided that:
(1) any successor Person assumes by supplemental indenture the
Company's obligations on the Securities and under this Indenture;
(2) after giving effect to the transaction, no Event of Default, and
no event which, after notice or lapse of time, would become an Event of Default,
shall have occurred and be continuing under this Indenture; and
(3) Xxxx XX shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such transaction or
supplemental indenture complies with this Indenture. Such Officers' Certificate
and Opinion of Counsel shall further state that all conditions precedent herein
provided for relating to such transactions have been complied with.
SECTION 5.02. SUCCESSOR PERSON SUBSTITUTED. Upon any consolidation or
merger or any sale, assignment, transfer, lease, conveyance or other disposition
of all or substantially all of the assets of Xxxx XX in accordance with Section
5.01, the successor Person formed by such consolidation or into or with which
Xxxx XX is merged or to which such sale, assignment, transfer, lease, conveyance
or other disposition is made, shall succeed to, and be substituted for, and may
exercise every right and power of Xxxx XX under this Indenture with the same
effect as if such successor Person had been named as Xxxx XX herein.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs if one
of the following shall have occurred and be continuing:
(1) Xxxx XX defaults in the payment, when due and payable, of (i)
interest on any Security and the default continues for a period of 30 days, or
(ii) the principal of any Securities when the same becomes due and payable at
maturity;
(2) Xxxx XX fails to comply with any of its covenants or agreements in
the Securities or this Indenture (other than those referred to in clause (1)
above) and such failure continues for 60 days after receipt by Xxxx XX of a
Notice of Default;
(3) default under indenture or instrument (other than this Indenture
or any Security) under which the Company shall have outstanding or shall have
guaranteed the payment of at least $25.0 million aggregate principal amount of
Indebtedness for money borrowed, which default
(a) is caused by failure to pay the principal of, or interest
on, such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default or
(b) results in acceleration of such Indebtedness prior to its
express maturity and such acceleration has not been annulled within ten
days after written notice as provided herein.
(4) Xxxx XX or any of its Subsidiaries pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief
against it in an involuntary case or
proceeding;
(C) consents to the appointment of a Custodian
of it or for all or substantially all of
its property;
(D) makes a general assignment for the benefit
of its creditors; or
(E) admits in writing its inability to pay its
debts generally as they become due; or
(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against Xxxx XX or any of its
Subsidiaries in an involuntary case or
proceeding;
(B) appoints a Custodian of Xxxx XX or any of
its Subsidiaries for all or substantially
all of its property;
(C) orders the liquidation of Xxxx XX or any of
its Subsidiaries;
(D) and in each case the order or decree remains
unstayed and in effect for 60 days.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
Federal or state law for the relief of debtors. "Custodian" means any receiver,
trustee, assignee, liquidator, sequestrator, custodian or similar official under
any Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies Xxxx XX or the Holders of at least 25% in aggregate principal
amount of Securities at the time outstanding notify Xxxx XX and the Trustee, of
the Default and Xxxx XX does not cure such Default within the time specified in
clause (2) above after receipt of such notice. Any such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default."
SECTION 6.02. ACCELERATION. If any Event of Default under clauses (1),
(2) or (3) of Section 6.01 occurs and is continuing, the Trustee may, by notice
to Xxxx XX, or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding may, by notice to Xxxx XX and the Trustee (each, an
"Acceleration Notice"), and the Trustee shall, upon the request of such Holders,
declare the principal of and accrued but unpaid interest on all Securities to be
due and payable immediately. If any Event of Default under clauses (4) or (5) of
Section 6.01 occurs, all principal and interest on the Securities will IPSO
FACTO become and be immediately due and payable. Except as set forth in Section
10.05, the Holders of a majority in aggregate principal amount of the Securities
then outstanding by written notice to the Trustee and to Xxxx XX may rescind an
acceleration and its consequences (except an acceleration due to a default in
payment of the principal or interest on any of the Securities) if all existing
Events of Default have been cured or waived except non-payment of principal or
interest that has become due solely because of the acceleration.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of and 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 the Trustee does not
possess any of the Securities or does not produce any of the Securities 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. Except as set forth in Section 2.07,
all remedies are cumulative to the extent permitted by law.
SECTION 6.04. CONTROL BY MAJORITY. Subject to the duty of the Trustee
during default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers provided herein at
the request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee, the Holders of a majority in aggregate principal
amount of the Securities then outstanding will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities.
SECTION 6.05. LIMITATION ON SUITS. Except as provided in Section 6.07,
a Holder may not 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;
(2) the Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding 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 satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 30 days after
receipt of the notice, the request and the offer of security or indemnity; and
(5) the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 30-day period.
A Holder may not use this Indenture to prejudice the rights of any
other Holder or to obtain a preference or priority over any other Holder.
SECTION 6.06. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the principal amount or interest, in respect of 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 adversely without the
consent of each such Holder.
SECTION 6.07. COLLECTION SUIT BY TRUSTEE. If an Event of Default
described in Section 6.01(1) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against Xxxx XX for
the whole amount owing with respect to the Securities and the amounts provided
for in Section 7.07.
SECTION 6.08. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to Xxxx XX or the property of Xxxx XX, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of the principal
amount and interest on the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding; and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.09. PRIORITIES. If the Trustee collects any money pursuant
to this Article 6, it shall pay out the money 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
the principal and interest, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Securities for principal and
interest respectively; and
THIRD: the balance, if any, to Xxxx XX.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
SECTION 6.10. 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 (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.10
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.06 or a suit by Holders of more than 10% in aggregate principal amount of the
Securities at the time outstanding.
SECTION 6.11. WAIVER OF STAY, EXTENSION OR USURY LAWS. Xxxx XX
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, that would prohibit or
forgive Xxxx XX from paying all or any portion of the principal or interest on
the Securities as contemplated herein or affect the covenants or the performance
by Xxxx XX of its obligations under this Indenture; and Xxxx XX (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default:
(A) the Trustee need perform only those duties
that are specifically set forth in this
Indenture and no implied covenants or
obligations shall be read into this
Indenture against the Trustee; and
(B) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the
truth of the statements and the correctness
of the opinions expressed therein, upon
certificates or opinions furnished to the
Trustee and conforming to the requirements
of this Indenture. However, in the case of
any such certificates or opinions which by
any provision hereof are specifically
required to be furnished to the Trustee, the
Trustee shall examine the certificates and
opinions to determine whether or not they
conform to the requirements of this
Indenture.
The Trustee shall not be liable for any interest on any money received
by it.
(3) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(A) this paragraph (3) does not limit the effect
of paragraph (2) of this Section 7.01;
(B) 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
(C) 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.
(4) Whether or not expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (1),
(2), (3) and (5) of this Section 7.01.
(5) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives security or indemnity satisfactory to it against
any loss, liability or expense.
(6) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money held by it hereunder.
SECTION 7.02. RIGHTS OF TRUSTEE.
(1) 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.
(2) Before the Trustee acts or refrains from acting, it may require
(and in the circumstances described in Section 314(c) of the TIA shall) an
Officers' Certificate and 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 such
Officers' Certificate or Opinion of Counsel.
(3) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(4) 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.
(5) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(6) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security and indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
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 Xxxx XX or its Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar or co- registrar
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 makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for Xxxx IV's use of the proceeds from
the Securities, and it shall not be responsible for any statement in a
registration statement for the Securities when filed under the Securities Act of
1933, as amended (the "Securities Act"), (other than statements contained in a
Form T-1 when filed with the SEC under the TIA) or in this Indenture or the
Securities (other than its certificate of authentication), or the determination
as to which beneficial owners are entitled to receive any notices hereunder.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder as their names and addresses appear on the Register notice of the Default
within 90 days after it becomes known to the Trustee unless such Default shall
have been cured or waived. Except in the case of a Default described in Section
6.01(l), the Trustee may withhold such notice if and so long as its board of
directors, the executive committee of its board of directors or a committee of
Trust Officers in good faith determines that the withholding of such notice is
in the interests of Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each
May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Holder a brief report dated as of such reporting date
that complies with Section 313(a) of the TIA. The Trustee shall also transmit
all reports as required by Section 313(b) of the TIA to such Holders. The
Trustee shall transmit such reports in such manner as required by Section 313(c)
of the TIA.
A copy of each report at the time of its mailing to Holders shall be
filed with Xxxx XX, the SEC and each stock exchange on which the Securities are
listed. Xxxx XX shall promptly notify the Trustee whenever the Securities become
listed on any stock exchange and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. Xxxx XX agrees:
(1) To pay to the Trustee from time to time such compensation as shall
be agreed in writing between Xxxx XX and the Trustee for all services rendered
by it hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) To reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, disbursements and advances of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) To indemnify the Trustee for, and to hold it harmless against, any
and all loss, liability or expense incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
The Trustee shall have a claim and lien prior to the Securities as to
all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 7.07, except with respect to funds
held in trust for the payment of principal of or interest on particular
Securities.
Xxxx IV's payment obligations pursuant to this Section 7.07 shall
survive the resignation or removal of the Trustee and the discharge of this
Indenture. When the Trustee renders services or incurs expenses after the
occurrence of a Default specified in Section 6.01(4) or (5), the compensation
for services and expenses are intended to constitute expenses of administration
under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying Xxxx XX in writing at least 30 days prior to the date of the proposed
resignation; PROVIDED, HOWEVER, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section 7.08.
The Holders of a majority in aggregate principal amount of the Securities at the
time outstanding may remove the Trustee by so notifying the Trustee and Xxxx XX.
Xxxx XX may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent or an
order for relief is entered with respect to the
Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, Xxxx XX shall promptly appoint, by resolution
of its board of directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to Xxxx XX. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders. Subject to payment of all amounts owing to the Trustee under Section
7.07 and subject further to its lien under Section 7.07, the retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, Xxxx XX or the
Holders of a majority in aggregate principal amount of the Securities at the
time outstanding 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 Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor 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 (including the trust created by the
Indenture) to, another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee; PROVIDED
that such successor is eligible and qualified under Section 7.10.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy requirements of Section 310(a)(1) of the TIA. 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
Section 310(b) of the TIA. In determining whether the Trustee has conflicting
interests as defined in Section 310(b)(1) of the TIA, the provisions contained
in the proviso to Section 310(b)(1) of the TIA shall be deemed incorporated
herein.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST XXXX XX. The
Trustee is subject to Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the TIA to the extent
indicated therein.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF XXXX IV'S OBLIGATIONS. Xxxx XX may
terminate all of its obligations under the Securities and this Indenture (except
those obligations referred to in the immediately succeeding paragraph) if all
Securities previously authenticated and delivered (other than destroyed, lost or
stolen Securities which have been replaced or paid or Securities for whose
payment money has theretofore been held in trust and thereafter repaid to Xxxx
XX as provided in Section 8.03) have been delivered to the Trustee for
cancellation and Xxxx XX has paid all sums payable by it hereunder, or if Xxxx
XX irrevocably deposits in trust with the Trustee money or U.S. Government
obligations maturing as to principal and interest in such amounts and at such
times as are sufficient, without consideration of any reinvestment of such
interest, to pay the principal of and interest on the Securities then
outstanding to maturity and to pay all other sums payable by it hereunder. Xxxx
XX may make an irrevocable deposit pursuant to this Section 8.01 only if at such
time it is not prohibited from doing so under the provisions of Article 10 and
Xxxx XX shall have delivered to the Trustee and any such Paying Agent an
Officers' Certificate to that effect.
Xxxx IV's obligations in paragraph 10 of the Securities and in
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 7.07, 7.08 and 8.04 shall survive
until the Securities are no longer outstanding. Thereafter, Xxxx IV's
obligations in such paragraph 10 and in Section 7.07 shall survive.
After such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of Xxxx IV's obligations under the
Securities and this Indenture, except for those surviving obligations specified
above.
"U.S. Government Obligations" means direct noncallable obligations of,
or non-callable obligations guaranteed by, the United States of America for the
payment of which guarantee or obligation the full faith and credit of the United
States is pledged.
SECTION 8.02. APPLICATION OF TRUST MONEY. The Trustee or Paying Agent
shall hold in trust, for the benefit of the Holders, money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of the principal of and interest on the
Securities. Money and U.S. Government Obligations so held in trust shall not be
subject to the subordination provisions of Article 10.
SECTION 8.03. REPAYMENT TO XXXX XX. Subject to Section 8.01, the
Trustee and the Paying Agent shall promptly pay to Xxxx XX upon request any
excess money or U.S. Government Obligations held by them at any time.
The Trustee and the Paying Agent shall pay to Xxxx XX upon request any
money held by them for the payment of principal or interest that remains
unclaimed for two years after a right to such money has matured; PROVIDED,
HOWEVER, that the Trustee or such Paying Agent, before being required to make
any such payment, may at the expense of Xxxx XX cause to be published once in a
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after a
date specified therein, which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to Xxxx XX. After payment to Xxxx XX, Holders entitled to money must
look to Xxxx XX for payment as general creditors unless otherwise prohibited by
law.
SECTION 8.04. REINSTATEMENT. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with Section
8.01 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, Xxxx IV's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 8.01; PROVIDED, HOWEVER, that if Xxxx XX has made any payment of
the principal of or interest on any Securities because of the reinstatement of
its obligations, Xxxx XX shall be subrogated to the rights of the Holders of
such Securities to receive any such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. From time to time, when
authorized by a resolution of its board of directors, Xxxx XX and the Trustee,
without notice to or the consent of the Holders of the Securities issued
hereunder, may amend or supplement this Indenture or the Securities as follows:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities so long as such uncertificated Securities are
in registered form for purposes of the Internal Revenue Code of 1986, as
amended;
(4) to make any other change that does not adversely affect the rights
of any Holder; or
(5) to comply with any requirement of the SEC in connection with the
qualification of the Trustee under the TIA.
SECTION 9.02. WITH CONSENT OF HOLDERS. With the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
at the time outstanding, Xxxx XX and the Trustee may amend this Indenture or the
Securities or may waive compliance in a particular instance by Xxxx XX with any
provisions of this Indenture or the Securities and may waive any past default
under this Indenture other than a default in the payment of principal of, or
interest on, any Security or in respect of a covenant or provision which cannot
be modified or amended without the consent of the Holder of each Security under
this Section 9.02. However, without the consent of each Holder affected thereby,
a waiver or an amendment to this Indenture or the Securities may not:
(1) change the fixed maturity of the principal of, or any installment
of principal of or interest on any Security;
(2) reduce the principal amount of, or interest on, any Security;
(3) change the place of payment where or coin or currency in which the
principal of, or interest on, any Securities is payable;
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to any Security;
(5) make any change in Article 10 that adversely affects the rights of
any Holders of the Securities or any change to any other section of the
Indenture that adversely affects the rights of any Holder of the Securities
under Article 10; or
(6) reduce the percentage in principal amount of outstanding
Securities.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
In the event that certain Holders are willing to defer or waive
certain obligations of Xxxx XX hereunder with respect to Securities held by
them, such deferral or waiver shall not be deemed to affect any other Holder who
receives the subject payment or performance in a timely manner.
After an amendment or waiver under this Section 9.02 becomes
effective, Xxxx XX shall mail to each Holder a notice briefly describing the
amendment or waiver. Any failure of Xxxx XX to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such amendment or waiver.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to
this Indenture or the Securities at a time when this Indenture shall be
qualified under the TIA shall be set forth in a supplement that complies with
the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment, waiver or other action by Holders becomes effective, a
consent to it or any other action by a Holder of a Security hereunder is a
continuing consent by the Holder and every subsequent Holder of that Security or
portion of the Security that evidences the same obligation as the consenting
Holder's Security, even if notation of the consent, waiver or action is not made
on the Security. However, any such Holder or subsequent Holder may revoke the
consent, waiver or action as to such Holder's Security or portion of the
Security if the Trustee receives the notice of revocation before the consent of
the requisite aggregate principal amount of the Securities then outstanding has
been obtained and not revoked. After an amendment, waiver or action becomes
effective, it shall bind every Holder, except as provided in Section 9.02.
Xxxx XX may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver. If a record date is fixed, then, notwithstanding the first two sentences
of the immediately preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. Securities
authenticated and made available for delivery after the execution of any
supplemental indenture pursuant to this Article 9 may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If Xxxx XX shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
board of directors of the Company, to any such supplemental indenture may be
prepared and executed by Xxxx XX and authenticated and made available for
delivery by the Trustee in exchange for outstanding Securities.
SECTION 9.06. TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the supplemental indenture does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not sign it. In signing such amendment the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Officers' Certificate and
Opinion of Counsel stating that such supplemental indenture is authorized or
permitted by this Indenture.
SECTION 9.07. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article 9, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and made available for delivery
hereunder shall be bound thereby.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE. Xxxx XX agrees, and
each Holder by accepting a Security agrees, that the indebtedness evidenced by
the Securities (including principal and interest) is subordinated in right of
payment, to the extent and in the manner provided in this Article 10 to the
prior payment in full of all Senior Indebtedness, and that the subordination is
for the benefit of the holders of the Senior Indebtedness. The Securities shall
not be superior in right of payment to the payment of Indebtedness evidenced by
the Company's 8 3/4% Notes or the Company's 7 3/4% Notes, but shall rank PARI
PASSU in all respect with such notes.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY. Upon any (i)
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to Xxxx XX or its property, (ii) assignment for the benefit of
creditors or any marshalling of the assets and liabilities of Xxxx XX or (iii)
distribution to creditors of Xxxx XX in a liquidation or dissolution of Xxxx XX:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full in cash or, at the option of the holders of the
Senior Indebtedness, cash equivalents of Senior Indebtedness (including
interest after the commencement of any such proceeding at the rate
specified in the applicable Senior Indebtedness whether or not a claim
therefor is allowed) to the date of payment on the Senior Indebtedness
before Holders shall be entitled to receive any payment of principal or
interest on the Securities; and
(2) until the Senior Indebtedness (as provided in subsection
(1) above) is paid in full in cash or, at the option of the holders of
the Senior Indebtedness, cash equivalents, any distribution to which
Holders would be entitled but for this Article 10 shall be made to
holders of Senior Indebtedness, as their interests may appear, except
that Holders may receive securities that are subordinated to Senior
Indebtedness (and to any securities issued in exchange for Senior
Indebtedness) to at least the same extent as the Securities to Senior
Indebtedness.
For purposes of this Article 10, a distribution may consist of cash,
securities or other property, by setoff or otherwise.
The consolidation of Xxxx XX with, or the merger of Xxxx XX into,
another corporation or the liquidation or dissolution of Xxxx XX following the
conveyance or transfer of its properties and assets substantially as an entirety
to another Person upon the terms and conditions set forth in Article 5 shall not
be deemed a dissolution, winding up, liquidation or reorganization for the
purposes of this Section 10.02 if the corporation formed by such consolidation
or into which Xxxx XX is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer
comply with the conditions set forth in Article 5.
SECTION 10.03. DEFAULT ON SENIOR INDEBTEDNESS. Upon the final maturity
of any Senior Indebtedness by lapse of time, acceleration or otherwise, all such
Senior Indebtedness shall first be paid in full in cash, or such payment duly
provided for in cash or in a manner satisfactory to the holders of such Senior
Indebtedness, before any payment is made by Xxxx XX or any Person acting on
behalf of Xxxx XX on account of the principal or interest of the Securities.
Until all Senior Indebtedness has been paid in full, in cash or cash
equivalents, Xxxx XX may not, directly or indirectly, make any payment of
principal or interest on the Securities and may not acquire any Securities for
cash or property or make any other distribution with respect to the Securities
if:
(i) a default in the payment of the principal or interest or
the payment of other amounts due under or in connection with any Senior
Indebtedness occurs and is continuing (a "Payment Default") unless and
until such default has been cured or waived; or
(ii) a default, other than a Payment Default, on any Senior
Indebtedness occurs and is continuing that then permits the holders (or
the agent) of such Senior Indebtedness to accelerate its maturity (a
"Non-Payment Default"), and such default is either the subject of
judicial proceedings or the Trustee and such Paying Agent receive a
notice of the default from a person who may give it pursuant to Section
10.11 at least two Business Days prior to the relevant payment date;
PROVIDED, HOWEVER, that only one such notice relating to the same event
of default or any other default existing at the time of such notice
under the Senior Indebtedness may be given during any 365 consecutive
day period.
Xxxx XX shall resume payments on the Securities and may acquire them
upon the earlier of when (a) the default is cured or waived or (b) in the case
of a default referred to in Section 10.03(ii) above, the 179th day after the
receipt of notice by the Trustee or the Paying Agent (with respect to a
Non-Payment Default, such period of time shall be hereinafter referred to as a
"Payment Blockage Period").
In addition, no default which existed or was continuing on the date of
the commencement of any Payment Blockage Period with respect to the Senior
Indebtedness and which was known to the holders (or agent) of such Senior
Indebtedness on such date of commencement shall be made the basis for the
commencement of a second Payment Blockage Period by the holders (or the agent)
of such Senior Indebtedness whether or not within a period of 365 consecutive
days unless and until all scheduled payments of principal or interest then due
and payable have been made on the Securities.
SECTION 10.04. NO SUSPENSION OF REMEDIES. Nothing contained in this
Article 10 shall limit the right of the Trustee or the Holders to take any
action to accelerate the maturity of the Securities pursuant to Section 6.02 or
to pursue any other rights or remedies hereunder or under applicable law;
PROVIDED, HOWEVER, that all Senior Indebtedness of Xxxx XX then due and payable,
or which thereafter is declared to be, or shall otherwise become, due and
payable, pursuant to its terms (whether by acceleration or otherwise) shall
first be paid in full in cash or, at the option of the holders of Senior
Indebtedness, cash equivalents before the Holders or the Trustee are entitled to
receive any payment from Xxxx XX of principal or interest on the Securities.
Notwithstanding the foregoing, any acceleration of the maturity of the
Securities due to the default by Xxxx XX to make a payment required by Section
6.01(l) resulting from the operation of Section 10.03 shall be automatically
rescinded to the extent permitted by applicable law and all Events of Default
which permitted the acceleration of the Securities or under applicable law shall
be deemed to be automatically and permanently cured to the extent permitted by
applicable law if (i) all defaults on Senior Indebtedness are permanently cured
or waived and (ii) the payment or payments the omission of which gave rise to
the Event of Default is or are made, within 179 days after the date on which the
Trustee or the Paying Agent received notice of the default or defaults on the
Senior Indebtedness; and PROVIDED, FURTHER, that at the time of such automatic
rescission no other Event of Default or Defaults shall have occurred and be
continuing. Such automatic rescission shall be effective as of the date both
conditions specified in clauses (i) and (ii) above are satisfied.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER. In the event that
Xxxx XX shall make any payment to the Trustee on account of the principal or
interest on the Securities at a time when such payment is prohibited by Section
10.02 or 10.03, such payment shall be held by the Trustee, in trust for the
benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders of Senior Indebtedness (pro rata as to each of such
holders on the basis of the respective amounts of Senior Indebtedness held by
them) or their representative, as their respective interests may appear, for
application to the payment of all Senior Indebtedness in full in accordance with
their terms, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness.
If a distribution is made to Holders that because of this Article 10
should not have been made to them, the Holders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness (pro rata as to each
of such holders on the basis of the respective amounts of Senior Indebtedness
held by them) or their representative, as their respective interests may appear,
for application to the payment of all Senior Indebtedness remaining unpaid to
the extent necessary to pay all Senior Indebtedness in full in accordance with
their terms, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness.
SECTION 10.06. NOTICE BY XXXX XX. Xxxx VI shall promptly notify the
Trustee and the Paying Agent of any facts known to Xxxx XX that would cause a
payment of principal of or interest on the Securities to violate this Article
10, but failure to give such notice shall not affect the subordination of the
Securities to the Senior Indebtedness provided in this Article 10. Nothing in
this Article 10 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
SECTION 10.07. SUBROGATION. After all Senior Indebtedness is paid in
full in cash or, at the option of the holders of Senior Indebtedness, cash
equivalents and until the Securities are paid in full, Holders shall be
subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness to the extent that distributions
otherwise payable to Holders have been applied to the payment of Senior
Indebtedness.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 10 shall have been
applied pursuant to the provisions of this Article 10 to the payment of all
amounts payable in respect of the Senior Indebtedness of Xxxx XX, then and in
such case, the Holders shall be entitled to receive from the holders of such
Senior Indebtedness at the time outstanding any payments or distributions
received by such holders of Senior Indebtedness in excess of the amount
sufficient to pay all amounts payable in respect of the Senior Indebtedness of
Xxxx XX in full in cash or, at the option of the holders of Senior Indebtedness,
cash equivalents.
SECTION 10.08. RELATIVE RIGHTS. This Article 10 defines the relative
rights of Holders and holders of Senior Indebtedness. Nothing in this Indenture
shall:
(1) impair, as between Xxxx XX and Holders, the obligation of
Xxxx XX, which is absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of
Xxxx XX other than holders of Senior Indebtedness; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders of Senior Indebtedness under this Article 10.
If Xxxx XX fails because of this Article 10 to pay principal of or
interest on a Security on the due date, the failure is still a Default or Event
of Default.
The provisions of this Article 10 shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any Senior
Indebtedness is rescinded or must otherwise be returned by any holder of Senior
Indebtedness upon the insolvency, bankruptcy or reorganization of Xxxx XX or
otherwise, all as though such payment had not been made.
SECTION 10.09. NO WAIVER OF SUBORDINATION PROVISIONS. No right of any
holder of Senior Indebtedness to enforce the subordination of the Indebtedness
evidenced by the Securities shall be impaired by any act or failure to act by
Xxxx XX or by its failure to comply with this Indenture.
The holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities and without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article 10
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (1) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing senior
Indebtedness; (3) release any person liable in any manner for the collection or
payment of Senior Indebtedness; and (4) exercise or refrain from exercising any
rights against Xxxx XX or any other Person.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their representative.
Upon any payment or distribution of assets of Xxxx XX referred to in
this Article 10, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction or upon any
certificate of such representative or of the liquidating trustee or agent or
other person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
Xxxx XX, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 10.
In the event that the Trustee determines, in good faith, that further evidence
is required with respect to the right of any Person, as a holder of Senior
Indebtedness, to participate in any payment or distribution pursuant to this
Section 10.10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, as to the extent to which such Person is
entitled to participation in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Section 10.10, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT. The Trustee or
Paying Agent shall not at any time be charged with the knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until an Officer in the Corporate Trust Administration
Department of the Trustee and each Paying Agent shall have received written
notice thereof from a holder (or the agent) of Senior Indebtedness who shall
have been certified by Xxxx XX or otherwise established to the satisfaction of
the Trustee to be such holder or agent; and, prior to the receipt of any such
written notice, the Trustee and each Paying Agent shall be entitled to assume
conclusively that no such facts exist. Unless at least three Business Days prior
to the date on which by the terms of this Indenture any monies are to be
deposited by Xxxx XX with the Trustee or any Paying Agent (whether or not in
trust) for any purpose (including, without limitation, the payment of the
principal of or interest on any Security) the Trustee and each Paying Agent
shall have received with respect to such monies the notice provided for in the
foregoing sentence, the Trustee and each Paying Agent shall have full power and
authority to receive such monies and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such date. The foregoing shall not apply
to the Paying Agent if Xxxx XX is Paying Agent.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee.
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION; NO FIDUCIARY
DUTY TO HOLDERS OF SENIOR INDEBTEDNESS. Each Holder of a Security by his
acceptance thereof authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in this Article 10, and appoints the Trustee as attorney-in-fact for
any and all purposes. Notwithstanding anything to the contrary in this Article
10, the Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall have no duties to such holders, except as
expressly set forth in this Article 10 and no implied covenants or obligation
shall be read into this Indenture against the Trustee. The Trustee shall not be
liable to holders of Senior Indebtedness if it shall mistakenly pay over or
distribute to or on behalf of Holders of Securities or Xxxx XX monies or assets
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article 10.
SECTION 10.13. MISCELLANEOUS.
(a) All rights and interests under this Article 10 of the holders of
Senior Indebtedness, and all agreements and obligations of the Holders, the
Trustee and Xxxx XX under this Article 10, shall remain in full force and effect
irrespective of:
(i) any lack of validity or enforceability of the Credit Agreement,
the notes or security instruments issued pursuant thereto or any other agreement
or instrument relating thereto;
(ii) any exchange, release or non-perfection of any lien securing
Senior Indebtedness, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Senior Indebtedness; or
(iii) any other circumstance that might otherwise constitute a defense
available to, or a discharge of Xxxx XX in respect of Senior Indebtedness.
(b) The provisions of this Article 10 constitute a continuing
agreement and shall (i) remain in full force and effect until the Senior
Indebtedness shall have been paid in full, (ii) be binding upon the Holders and
the Trustee, Xxxx XX and their successors and assigns, and (iii) inure to the
benefit of and be enforceable by each other holder of Senior Indebtedness and
its successors, transferees and assigns.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by operation of
subsection (c) of Section 318 of the TIA, the duties imposed by the TIA shall
control. The provisions of Sections 310 to 317, inclusive, of the TIA that
impose duties on any Person (including provisions automatically deemed included
in an indenture unless the indenture provides that such provisions are excluded)
are a part of and govern this Indenture, except as, and to the extent, expressly
excluded from this Indenture, as permitted by the TIA.
SECTION 11.02. NOTICES. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail, postage prepaid,
or overnight air courier guaranteeing next day delivery, addressed as follows:
if to Xxxx XX:
Xxxx XX Industries, Inc.
000 Xxxx Xxxxx Xxxxxxx Xxxxxxx
X.X. Xxx 000
Xxxxxxx, Xxx Xxxx 00000-0000
Attention: President
if to the Trustee:
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Operations
The address of the office or agency of the Trustee in the Borough of
Manhattan, the City of New York at which Securities may be presented for payment
or for registration of transfer, exchange or for redemption is:
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
(Xxxx XX Industries, Inc.)
Xxxx XX or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications or
presentation of securities.
Any notice or communication given 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 received by the addressee, except that no notice or communication
to the Trustee shall be deemed given unless actually received by the Trustee.
If Xxxx XX mails a notice or communication to the Holders, it shall
mail a copy to the Trustee and each Registrar, Paying Agent or co-registrar.
SECTION 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Holders
may communicate pursuant Section 312(b) of the TIA with other Holders with
respect to their rights under this Indenture or the Securities. Xxxx XX, the
Trustee, the Registrar, the Paying Agent and anyone else shall have the
protection of Section 312(c) of the TIA.
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by Xxxx XX to the Trustee to take any action
under this Indenture, Xxxx XX shall furnish to the Trustee:
(1) an Officers' Certificate 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 stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
Officers' Certificate and Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that each Person making such Officers' Certificate or
Opinion of Counsel 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 Officers'
Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person, he has made
such examination or investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement that, in the opinion of such Person, such covenant or
condition has been complied with; PROVIDED, HOWEVER, that with respect to
matters of fact, an Opinion of Counsel may rely on an Officers' Certificate or
certificates of public officials.
SECTION 11.06. SEVERABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and Paying Agent may make reasonable rules for their functions.
SECTION 11.08. LEGAL HOLIDAYS. A "Legal Holiday" is any day other than
a Business Day. If any specified date (including a date for giving notice) is a
Legal Holiday, the action shall be taken on the next succeeding day that is not
a Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no principal or interest installment shall accrue for
the intervening period.
SECTION 11.09. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW YORK.
SECTION 11.10. NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of Xxxx XX shall not have any liability for
any obligations of Xxxx XX 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 11.11. SUCCESSORS. All agreements of Xxxx XX in this Indenture
and the Securities shall bind its successors. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 11.12. 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.
[SIGNATURE PAGE TO FOLLOW]
SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
XXXX XX INDUSTRIES, INC.
BY:
Name:
Title:
MARINE MIDLAND BANK
BY:
Name:
Title:
EXHIBIT A-1
[FORM OF FACE OF SENIOR SUBORDINATED NOTE]
XXXX XX INDUSTRIES, INC.
7 1/2% Senior Subordinated Note due 2007
CUSIP No. 000000XX0 [144A]
000000XX0 [IAI]
No. $
Xxxx XX Industries, Inc., a Delaware corporation ("Xxxx XX,"
which term includes any successor corporation under the Indenture hereinafter
referred to), promises to pay to----------------- or registered assigns,
the principal amount of----------------- Dollars on September 1, 2007.
Interest Payment Dates: March 1 and September 1, commencing March 1,
1998.
Record Dates: February 15 and August 15.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, Xxxx XX has caused this Security to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon and attested by its
Secretary or one of its Assistant Secretaries.
XXXX XX INDUSTRIES, INC.
Attested by: By:
Name:
Title:
[SEAL]
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture.
MARINE MIDLAND BANK
By:
Authorized Officer
[FORM OF REVERSE SIDE OF SENIOR SUBORDINATED NOTE]
7 1/2% Senior Subordinated Note due 2007
[Unless and until it is exchanged in whole or in part for Securities
in definitive form, this Security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) TO A PERSON
WHO 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, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."2
Capitalized terms used herein have the meaning assigned to them in the
Indenture unless otherwise indicated.
1. INTEREST
--------
3. This paragraph should be included only if the Security is issued in global
form.
4 This paragraph should be removed upon the exchange of Series A Senior
Subordinated Notes for Series B Senior Subordinated Notes in the Exchange Offer
or upon the registration of the Senior Subordinated Notes pursuant to the terms
of the Registration Rights Agreement.
Xxxx XX Industries, Inc., a Delaware corporation ("Xxxx XX"), promises
to pay interest on the principal amount of this Security at the rate per annum
shown above. Interest will be payable semi-annually on each interest payment
date referred to on the face hereof, commencing March 1, 1998. 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 date of the Indenture; PROVIDED
that, if there is no existing Event of Default in the payment of interest and if
this Security is authenticated between a record date referred to on the face
hereof and the next succeeding interest payment date, interest shall accrue from
such interest payment date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
Xxxx XX shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
borne by the Securities.
2. METHOD OF PAYMENT
Xxxx XX will pay interest on the Securities (except defaulted
interest) to the persons who are registered Holders at the close of business on
the record dates referred to on the face hereof immediately preceding the
respective interest payment dates even if the Security is cancelled on
registration of transfer or registration of exchange. Holders must surrender
Securities to a Paying Agent to collect principal payments. Xxxx XX 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. However, Xxxx XX may
pay principal and interest by its check payable in such money. It may mail an
interest payment to a Holder's registered address.
3. PAYING AGENT AND REGISTRAR
Initially, the Trustee will act as Paying Agent and Registrar. Xxxx XX
may appoint and change any Paying Agent or Registrar without notice, other than
notice to the Trustee. Xxxx XX or any subsidiary or an Affiliate of either of
them may act as Paying Agent, Registrar or co-registrar.
4. INDENTURE
Xxxx XX issued the Securities under an Indenture, dated as of August
11, 1997 (the "Indenture"), between Xxxx XX 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, as amended and as in
effect on the date of the Indenture (the "TIA"), and as provided in the
Indenture. The Securities are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of those terms.
The Securities are general obligations of Xxxx XX limited to
$250,000,000 aggregate principal amount.
5. REDEMPTION
The Securities are not redeemable, in whole or in part, prior to
maturity.
6. SUBORDINATION
The Securities are subordinated to Senior Indebtedness. To the extent
provided in the Indenture, Senior Indebtedness must be paid before the
Securities may be paid. Xxxx XX agrees, and each Holder by accepting a Security
agrees, to such subordination and authorizes the Trustee to give it effect.
7. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form, without coupons, in
denominations of $1,000 of principal amount and integral 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 and 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.
8. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
9. AMENDMENT; WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
at the time outstanding and (ii) certain defaults or noncompliance with certain
provisions may be waived with the written consent of the Holders of a majority
in aggregate principal amount of the Securities at the time outstanding. Subject
to certain exceptions set forth in the Indenture, without the consent of any
Holder, Xxxx XX and the Trustee may amend the Indenture or the Securities to
cure any ambiguity, defect or inconsistency, or to comply with Article 5 of the
Indenture, or to provide for uncertificated Securities in addition to
certificated Securities, or to comply with any requirements of the Securities
and Exchange Commission in connection with the qualification of the Trustee
under the TIA, or to make any change that does not adversely affect the rights
of any Holder.
11. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include: (1) failure to pay any
interest on any Security when due and payable, continued for 30 days; (2)
failure to pay principal of any Security at its maturity; (3) failure to perform
any other covenant of the Company in the Indenture, continued for 60 days after
written notice as provided in the Indenture; (4) default under any indenture or
instrument (other than the Indenture or any Security) under which the Company
shall have outstanding or shall have guaranteed the payment of at least $25.0
million aggregate principal amount of Indebtedness for money borrowed which
default (a) is caused by failure to pay the principal of, or interest on, such
Indebtedness prior to the expiration of the grace period provided in such
indebtedness on the date of such default or (b) results in acceleration of such
indebtedness prior to its express maturity and such acceleration has not been
annulled within ten days after written notice as provided in the Indenture; and
(5) certain events in bankruptcy, insolvency or reorganization involving the
Company. If an Event of Default occurs and is continuing, the Trustee, or the
Holders of at least 25% in aggregate principal amount of the Securities at the
time outstanding, may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which will result in the Securities becoming due and payable immediately upon
the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Securities at the time outstanding may direct the Trustee in its exercise of any
trust or power.
12. TRUSTEE DEALINGS WITH XXXX XX
Subject to certain limitations imposed by the TIA, 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 Xxxx XX or its Affiliates and may otherwise deal with Xxxx XX or its
Affiliates with the same rights it would have if it were not Trustee.
13. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of Xxxx XX
shall not have any liability for any obligations of Xxxx XX 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 Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
14. AUTHENTICATION
This Security shall not be valid until an authorized officer of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
15. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TENANT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
16. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent will pay the money back to Xxxx XX at
its request. After that, Holders entitled to money must look to Xxxx XX for
payment.
17. DISCHARGE PRIOR TO MATURITY
If Xxxx XX deposits with the Trustee or Paying Agent money or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Securities to maturity, Xxxx XX will be discharged from the Indenture except for
certain Sections thereof.
18. GOVERNING LAW
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to:
__________________________________________________________________________
(insert assignee's social security or tax I.D. number)
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(print or type assignee's name, address and zip code)
and irrevocably appoint _______________________ agent to transfer this Security
on the books of Xxxx XX. The agent may substitute another to act for him.
Dated: Signature:
(Sign exactly as your
name appears on the
other side of this
Security)
Signature
Guarantee*:
* Signature must be guaranteed by an eligible guarantor institution
within the meaning of Securities and Exchange Commission Rule 17Ad-15
(including banks, stock brokers, savings and loan associations,
national securities exchanges, registered securities associations,
clearing agencies and credit unions) with membership or participation
in an approved signature guarantee medallion program if this Security
is to be delivered other than to and in the name of the registered
holder.
SCHEDULE OF EXCHANGES FOR OTHER NOTES3
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Amount of Principal Amount of this Signature of
Amount of decrease in increase in Global Note authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Note
Date of Exchange This Global Note This Global Note (or Increase) Custodian
------------------------ ----------------------- -------------------------- ----------------
--------
3 This should be included only if the Senior Subordinated Note is issued in
global form.
EXHIBIT A-2
[FORM OF FACE OF REGULATION S TEMPORARY GLOBAL NOTE]
XXXX XX INDUSTRIES, INC.
7 1/2% Senior Subordinated Note due 2007
CUSIP No. X00000XX0 [REG S]
No. $
Xxxx XX Industries, Inc., a Delaware corporation ("Xxxx XX," which
term includes any successor corporation under the Indenture hereinafter referred
to), promises to pay to or registered assigns, the principal amount of Dollars
on September 1, 2007.
Interest Payment Dates: March 1 and September 1, commencing March 1,
1998.
Record Dates: February 15 and August 15.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, Xxxx XX has caused this Security to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon and attested by its
Secretary or one of its Assistant Secretaries.
XXXX XX INDUSTRIES, INC.
Attested by: By:
Name: Name:
Title Title:
[SEAL]
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture.
MARINE MIDLAND BANK
By:
Authorized Officer
[FORM OF REVERSE SIDE OF REGULATION S TEMPORARY GLOBAL NOTE]
7 1/2% Senior Subordinated Note due 2007
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
["THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) TO A PERSON
WHO 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, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE
SENIOR SUBORDINATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST
HEREON PRIOR TO THE EXCHANGE OF THIS SENIOR SUBORDINATED NOTE FOR A
REGULATION S TEMPORARY GLOBAL NOTE AS CONTEMPLATED BY THE INDENTURE.
Until this Regulation S Temporary Global Note is exchanged for
Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to
receive payments of interest or Liquidated Damages, if any, hereon although
interest and Liquidated Damages, if any, will continue to accrue; until so
exchanged in full, this Regulation S Temporary Global Note shall in all other
respects be entitled to the same benefits as other Senior Subordinated Notes
under the Indenture.
This Regulation S Temporary Global Note is exchangeable in whole or in
part for one or more Regulation S Permanent Global Notes or Rule 144A Global
Notes only (i) on or after the termination of the 40-day restricted period (as
defined in Regulation S) and (ii) upon presentation of certificates (accompanied
by an Opinion of Counsel, if applicable) required by Article 2 of the Indenture.
Upon exchange of this Regulation S Temporary Global Note for one or more
Regulation S Permanent Global Notes or Rule 144A Global Notes, the Trustee shall
cancel this Regulation S Temporary Global Note.
This Regulation S Temporary Global Note shall not become valid or
obligatory until the certificate of authentication hereon shall have been duly
manually signed by the Trustee in accordance with the Indenture. This Regulation
S Temporary Global Note shall be governed by and construed in accordance with
the laws of the State of the New York. All references to "$," "Dollars,"
"dollars" or "U.S. $" are to such coin or currency of the United States of
America as at the time shall be legal tender for the payment of public and
private debts therein."]6
Capitalized terms used herein have the meaning assigned to them in the
Indenture unless otherwise indicated.
1. INTEREST
Xxxx XX Industries, Inc., a Delaware corporation ("Xxxx XX"), promises
to pay interest on the principal amount of this Security at the rate per annum
shown above. Interest will be payable semi-annually on each interest payment
date referred to on the face hereof, commencing March 1, 1998. 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 date of the Indenture; PROVIDED
that, if there is no existing Event of Default in the payment of interest and if
this Security is authenticated between a record date referred to on the face
hereof and the next succeeding interest payment date, interest shall accrue from
such interest payment date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
Xxxx XX shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
borne by the Securities.
2. METHOD OF PAYMENT
Xxxx XX will pay interest on the Securities (except defaulted
interest) to the persons who are registered Holders at the close of business on
the record dates referred to on the face hereof immediately preceding the
respective interest payment dates even if the Security is cancelled on
registration of transfer or registration of exchange. Holders must surrender
Securities to a Paying Agent to collect principal payments. Xxxx XX 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. However, Xxxx XX may
pay principal and interest by its check payable in such money. It may mail an
interest payment to a Holder's registered address.
3. PAYING AGENT AND REGISTRAR
Initially, the Trustee will act as Paying Agent and Registrar. Xxxx XX
may appoint and change any Paying Agent or Registrar without notice, other than
notice to the Trustee. Xxxx XX or any subsidiary or an Affiliate of either of
them may act as Paying Agent, Registrar or co-registrar.
--------
6 These paragraphs should be removed upon the exchange of the Regulation S
Temporary Global Notes for Regulation S Permanent Global Notes pursuant to the
Indenture.
4. INDENTURE
Xxxx XX issued the Securities under an Indenture, dated as of August
11, 1997 (the "Indenture"), between Xxxx XX 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, as amended and as in
effect on the date of the Indenture (the "TIA"), and as provided in the
Indenture. The Securities are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of those terms.
The Securities are general obligations of Xxxx XX limited to
$250,000,000 aggregate principal amount.
5. REDEMPTION
The Securities are not redeemable, in whole or in part, prior to
maturity.
6. SUBORDINATION
The Securities are subordinated to Senior Indebtedness. To the extent
provided in the Indenture, Senior Indebtedness must be paid before the
Securities may be paid. Xxxx XX agrees, and each Holder by accepting a Security
agrees, to such subordination and authorizes the Trustee to give it effect.
7. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form, without coupons, in
denominations of $1,000 of principal amount and integral 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 and 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.
8. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
9. AMENDMENT; WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
at the time outstanding and (ii) certain defaults or noncompliance with certain
provisions may be waived with the written consent of the Holders of a majority
in aggregate principal amount of the Securities at the time outstanding. Subject
to certain exceptions set forth in the Indenture, without the consent of any
Holder, Xxxx XX and the Trustee may amend the Indenture or the Securities to
cure any ambiguity, defect or inconsistency, or to comply with Article 5 of the
Indenture, or to provide for uncertificated Securities in addition to
certificated Securities, or to comply with any requirements of the Securities
and Exchange Commission in connection with the qualification of the Trustee
under the TIA, or to make any change that does not adversely affect the rights
of any Holder.
11. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include: (1) failure to pay any
interest on any Security when due and payable, continued for 30 days; (2)
failure to pay principal of any Security at its maturity; (3) failure to perform
any other covenant of the Company in the Indenture, continued for 60 days after
written notice as provided in the Indenture; (4) default under any indenture or
instrument (other than the Indenture or any Security) under which the Company
shall have outstanding or shall have guaranteed the payment of at least $25.0
million aggregate principal amount of Indebtedness for money borrowed which
default (a) is caused by failure to pay the principal of, or interest on, such
Indebtedness prior to the expiration of the grace period provided in such
indebtedness on the date of such default or (b) results in acceleration of such
indebtedness prior to its express maturity and such acceleration has not been
annulled within ten days after written notice as provided in the Indenture; and
(5) certain events in bankruptcy, insolvency or reorganization involving the
Company. If an Event of Default occurs and is continuing, the Trustee, or the
Holders of at least 25% in aggregate principal amount of the Securities at the
time outstanding, may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which will result in the Securities becoming due and payable immediately upon
the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Securities at the time outstanding may direct the Trustee in its exercise of any
trust or power.
12. TRUSTEE DEALINGS WITH XXXX XX
Subject to certain limitations imposed by the TIA, 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 Xxxx XX or its Affiliates and may otherwise deal with Xxxx XX or its
Affiliates with the same rights it would have if it were not Trustee.
13. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of Xxxx XX
shall not have any liability for any obligations of Xxxx XX 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 Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
14. AUTHENTICATION
This Security shall not be valid until an authorized officer of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
15. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TENANT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
16. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent will pay the money back to Xxxx XX at
its request. After that, Holders entitled to money must look to Xxxx XX for
payment.
17. DISCHARGE PRIOR TO MATURITY
If Xxxx XX deposits with the Trustee or Paying Agent money or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Securities to maturity, Xxxx XX will be discharged from the Indenture except for
certain Sections thereof.
18. GOVERNING LAW
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to:
_______________________________________________________________________
(insert assignee's social security or tax I.D. number)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(print or type assignee's name, address and zip code)
and irrevocably appoint _______________________ agent to transfer this Security
on the books of Xxxx XX. The agent may substitute another to act for him.
Dated: Signature:
(Sign exactly as your
name appears on the
other side of this
Security)
Signature
Guarantee*:
* Signature must be guaranteed by an eligible guarantor institution
within the meaning of Securities and Exchange Commission Rule 17Ad-15
(including banks, stock brokers, savings and loan associations,
national securities exchanges, registered securities associations,
clearing agencies and credit unions) with membership or participation
in an approved signature guarantee medallion program if this Security
is to be delivered other than to and in the name of the registered
holder.
SCHEDULE OF EXCHANGES OF NOTES2
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or a Definitive Note for an interest in this Global Note,
have been made:
Amount of Principal Amount of this Signature of
Amount of decrease in increase in Global Note authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Note
Date of Exchange This Global Note This Global Note (or Increase) Custodian
- ------------------------ ----------------------- -------------------------- ----------------
--------
7 This should be included only if the Senior Subordinated Note is issued in
global form.
EXHIBIT B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.06(a)(i) of the Indenture)
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 7 1/2% Senior Subordinated Notes due 2007 of Xxxx XX Industries,
Inc.
Reference is hereby made to the Indenture, dated as of August 11, 1997
(the "Indenture"), between Xxxx XX Industries, Inc., a Delaware corporation (the
"COMPANY") and Marine Midland Bank, as trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $ _______________ principal amount of the above
referenced securities (the "Senior Subordinated Notes") which are evidenced by
one or more Rule 144A Global Notes and held with the Depositary in the name of
______________________ (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Senior Subordinated Notes to a
Person who will take delivery thereof in the form of an equal principal amount
of Senior Subordinated Notes evidenced by one or more Regulation S Global Notes,
which amount, immediately after such transfer, is to be held with the Depositary
through Euroclear or Cedel or both.
In connection with such request and in respect of such Senior
Subordinated Notes, the Transferor hereby certifies that such transfer has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with Rule 903 or Rule 904 under the
United States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor hereby further certifies that:
(1) The offer of the Senior Subordinated Notes was not made to a
person in the United States;
(2) either:
(a) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed and believes that the
transferee was outside the United States; or
(b) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration provisions of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the
Depositary through Euroclear or Cedel or both.
Upon giving effect to this request to exchange a beneficial interest
in a Rule 144A Global Note for a beneficial interest in a Regulation S Global
Note, the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Regulation S Global Notes pursuant to the Indenture and
the Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Senior Subordinated
Notes, the additional restrictions applicable to transfers of interest in the
Regulation S Temporary Global Note.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Bear, Xxxxxxx & Co. Inc., the initial
purchaser of such Senior Subordinated Notes being transferred. Terms used in
this certificate and not otherwise defined in the Indenture have the meanings
set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
cc: Xxxx XX Industries, Inc.
Bear, Xxxxxxx & Co. Inc.
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii) of the Indenture)
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 7 1/2% Senior Subordinated Notes due 2007 of Xxxx XX Industries,
Inc.
Reference is hereby made to the Indenture, dated as of August 11, 1997
(the "Indenture"), between Xxxx XX Industries, Inc., a Delaware corporation (the
"COMPANY") and Marine Midland Bank, as trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $_________ principal amount of the above
referenced securities (the "Senior Subordinated Notes") which are evidenced by
one or more Regulation S Global Notes and held with the Depositary through
Euroclear or Cedel in the name of __________________________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Senior Subordinated Notes to a Person who will take delivery
thereof in the form of an equal principal amount of Senior Subordinated Notes
evidenced by one or more Rule 144A Global Notes, to be held with the Depositary.
In connection with such request and in respect of such Senior
Subordinated Notes, the Transferor hereby certifies that:
[CHECK ONE]
|_| such transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Senior Subordinated Notes are being transferred to a
Person that the Transferor reasonably believes is purchasing the Senior
Subordinated Notes for its own account, or for one or more accounts with
respect to which such Person exercises sole investment discretion, and
such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements
of Rule 144A;
or
|_| such transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;
or
|_| such transfer is being effected pursuant to an exemption under the
Securities Act other than Rule 144A, Rule 144 or Rule 904 and the
Transferor further certifies that the Transfer complies with the transfer
restrictions applicable to beneficial interests in Global Notes and
Definitive Senior Subordinated Notes bearing the Private Placement Legend
and the requirements of the exemption claimed, which certification is
supported by (x) if such transfer is in respect of a principal amount
of Senior Subordinated Notes at the time of Transfer of $100,000 or more,
a certificate executed by the Transferee in the form of EXHIBIT C to the
Indenture, or (y) if such Transfer is in respect of a principal amount of
Senior Subordinated Notes at the time of transfer of less than $100,000,
(1) a certificate executed in the form of EXHIBIT C to the Indenture and
(2) an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the
effect that (1) such Transfer is in compliance with the Securities Act and
(2) such Transfer complies with any applicable blue sky securities laws
of any state of the United States;
or
|_| such transfer is being effected pursuant to an effective registration
statement under the Securities Act;
or
|_| such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that
the Senior Subordinated Notes are being transferred in compliance with
the transfer restrictions applicable to the Global Notes and in
accordance with the requirements of the exemption claimed,
which certification is supported by an Opinion of Counsel, provided by
the transferor or the transferee (a copy of which the Transferor has
attached to this certification) in form reasonably
acceptable to the Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and such Senior Subordinated Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest
in Regulation S Global Notes for a beneficial interest in 144A Global Senior
Subordinated Notes, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Rule 144A Global Notes pursuant to the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Bear, Xxxxxxx & Co. Inc., the initial
purchaser of such Senior Subordinated Notes being transferred. Terms used in
this certificate and not otherwise defined in the Indenture have the meanings
set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
cc: Xxxx XX Industries, Inc.
Bear, Xxxxxxx & Co. Inc.
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE SENIOR SUBORDINATED NOTES
(Pursuant to Section 2.06(b) of the Indenture)
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 7 1/2% Senior Subordinated Notes due 2007 of Xxxx XX Industries,
Inc.
Reference is hereby made to the Indenture, dated as of August 11, 1997
(the "Indenture"), between Xxxx XX Industries, Inc., a Delaware corporation (the
"COMPANY") and Marine Midland Bank, as trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $ principal amount of the above referenced
securities (the "Senior Subordinated Notes") which are evidenced by one or more
Definitive Senior Subordinated Notes in the name of (the "Transferor"). The
Transferor has requested an exchange or transfer of such Definitive Senior
Subordinated Note(s) in the form of an equal principal amount of Senior
Subordinated Notes evidenced by one or more Definitive Senior Subordinated
Notes, to be delivered to the Transferor or, in the case of a transfer of such
Senior Subordinated Notes, to such Person as the Transferor instructs the
Trustee.
In connection with such request and in respect of the Senior
Subordinated Notes surrendered to the Trustee herewith for exchange (the
"Surrendered Senior Subordinated Notes"), the Holder of such Surrendered Senior
Subordinated Notes hereby certifies that:
[CHECK ONE]
|_| the Surrendered Senior Subordinated Notes are being acquired for the
Transferor's own account, without transfer;
or
|_| the Surrendered Senior Subordinated Notes are being transferred to the
Company;
or
|_| the Surrendered Senior Subordinated Notes are being transferred pursuant
to and in accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Senior
Subordinated Notes are being transferred to a Person that the Transferor
reasonably believes is purchasing the Surrendered Senior Subordinated
Notes for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person
and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A, in each case in a transaction meeting the
requirements of Rule 144A;
or
|_| the Surrendered Senior Subordinated Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
|_| the Surrendered Senior Subordinated Notes are being transferred pursuant to
an exemption under the Securities Act other than Rule 144A, Rule 144 or
Rule 904 and the Transferor further certifies that the Transfer complies
with the transfer restrictions applicable to beneficial interests in Global
Notes and Definitive Senior Subordinated Notes bearing the Private
Placement Legend and the requirements of the exemption claimed, which
certification is supported by (x) if such transfer is in respect of a
principal amount of Senior Subordinated Notes at the time of Transfer of
$100,000 or more, a certificate executed by the Transferee in the form of
EXHIBIT C to the Indenture, or (y) if such Transfer is in respect of a
principal amount of Senior Subordinated Notes at the time of
transfer of less than $100,000, (1) a certificate executed in the form of
EXHIBIT C to the Indenture and (2) an Opinion of Counsel provided
by the Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that (1) such Transfer is in
compliance with the Securities Act and (2) such Transfer complies with any
applicable blue sky securities laws of any state of the United States;
or
|_| the Surrendered Senior Subordinated Notes are being transferred pursuant
to an effective registration statement under the Securities Act;
or
|_| such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Subordinated Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the transferor or the transferee (a copy
of which the Transferor has attached to this certification) in form
reasonably acceptable to the Company and to the Registrar, to the effect
that such transfer is in compliance with the Securities Act;
and the Surrendered Senior Subordinated Notes are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Bear, Xxxxxxx & Co. Inc., the initial
purchasers of such Senior Subordinated Notes being transferred. Terms used in
this certificate and not otherwise defined in the Indenture have the meanings
set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
cc: Xxxx XX Industries, Inc.
Bear, Xxxxxxx & Co. Inc.
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR REGULATION S
PERMANENT GLOBAL NOTE
TO DEFINITIVE SENIOR SUBORDINATED NOTE
(Pursuant to Section 2.06(c) of the Indenture)
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 7 1/2% Senior Subordinated Notes due 2007 of Xxxx XX Industries, Inc.
Reference is hereby made to the Indenture, dated as of August 11,
1997 (the "Indenture"), between Xxxx XX Industries, Inc., a Delaware corporation
(the "COMPANY") and Marine Midland Bank, as trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $__________ principal amount of the above
referenced securities (the "Senior Subordinated Notes") which are evidenced by a
beneficial interest in one or more Rule 144A Global Notes or Regulation S
Permanent Global Notes in the name of (the "Transferor"). The Transferor has
requested an exchange or transfer of such beneficial interest in the form of an
equal principal amount of Senior Subordinated Notes evidenced by one or more
Definitive Senior Subordinated Notes, to be delivered to the Transferor or, in
the case of a transfer of such Senior Subordinated Notes, to such Person as the
Transferor instructs the Trustee.
In connection with such request and in respect of the Senior
Subordinated Notes surrendered to the Trustee herewith for exchange (the
"Surrendered Senior Subordinated Notes"), the Holder of such Surrendered Senior
Subordinated Notes hereby certifies that:
[CHECK ONE]
|_| the Surrendered Senior Subordinated Notes are being transferred to the
beneficial owner of such Senior Subordinated Notes;
or
|_| the Surrendered Senior Subordinated Notes are being transferred pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the Surrendered Senior Subordinated Notes are
being transferred to a Person that the Transferor reasonably believes is
purchasing the Surrendered Senior Subordinated Notes for its own account,
or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each
case in a transaction meeting they requirements of Rule 144A;
or
|_| the Surrendered Senior Subordinated Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
|_| the Surrendered Senior Subordinated Notes are being transferred pursuant
to an effective registration statement under the Securities Act;
or
|_| the Surrendered Senior Subordinated Notes are being transferred pursuant to
an exemption under the Securities Act other than Rule 144A, Rule 144 or
Rule 904 and the Transferor further certifies that the Transfer complies
with the transfer restrictions applicable to beneficial interests in Global
Notes and Definitive Senior Subordinated Notes bearing the Private
Placement Legend and the requirements of the exemption claimed, which
certification is supported by (x) if such transfer is in respect of a
principal amount of Senior Subordinated Notes at the time of Transfer of
$100,000 or more, a certificate executed by the Transferee in the form of
EXHIBIT C to the Indenture, or (y) if such Transfer is in respect of a
principal --------- amount of Senior Subordinated Notes at the time of
transfer of less than $100,000, (1) a certificate executed in the form of
EXHIBIT C to the Indenture and (2) an Opinion of Counsel --------- provided
by the Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that (1) such Transfer is in
compliance with the Securities Act and (2) such Transfer complies with any
applicable blue sky securities laws of any state of the United States;
or
|_| such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Subordinated Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the transferor or the transferee (a copy
of which the Transferor has attached to this certification) in form
reasonably acceptable to the Company and to the Registrar, to the effect
that such transfer is in compliance with the Securities Act;
and the Surrendered Senior Subordinated Notes are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Bear, Xxxxxxx & Co. Inc., the initial
purchaser of such Senior Subordinated Notes being transferred. Terms used in
this certificate and not otherwise defined in the Indenture have the meanings
set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
cc: Xxxx XX Industries, Inc.
Bear, Xxxxxxx & Co. Inc.
EXHIBIT C
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 7 1/2% Senior Subordinated Notes due 2007 of Xxxx XX Industries,
Inc.
Reference is hereby made to the Indenture, dated as of August 11, 1997
(the "Indenture"), between Xxxx XX Industries, Inc., a Delaware corporation (the
"COMPANY") and Marine Midland Bank, as trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of $__________ aggregate
principal amount of:
(a) / / Beneficial interests in the above referenced securities (the
"Senior Subordinated Notes"), or
(b) / / Definitive Senior Subordinated Notes,
we confirm that:
1. We understand that any subsequent transfer of the Senior
Subordinated Notes of any interest therein is subject to certain restrictions
and conditions set forth in the Indenture and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Senior Subordinated
Notes or any interest therein except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Senior Subordinated
Notes have not been registered under the Securities Act, and that the Senior
Subordinated Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf
of any accounts for which we are acting as hereinafter stated, that if we should
sell the Senior Subordinated Notes or any interest therein, (A) we will do so
only (1)(a) to a person who 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 144A, (b) in a transaction meeting the
requirements of Rule 144 under the Securities Act, (c) outside the United States
to a foreign person in a transaction meeting the requirements of Rule 904 of the
Securities Act, or (d) in accordance with another exemption from the
registration requirements of the Securities Act (and based upon an opinion of
counsel), (2) to the Company or any of its subsidiaries or (3) pursuant to an
effective registration statement and, in each case, in accordance with any
applicable securities laws of any State of the United States or any other
applicable jurisdiction and (B) we will, and each subsequent holder will be
required to, notify any purchaser from it of the security evidenced hereby of
the resale restrictions set forth in (A) above."
3. We understand that, on any proposed resale of the Senior
Subordinated Notes or beneficial interests, we will be required to furnish to
you and the Company such certifications, legal opinions and other information as
you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Senior
Subordinated Notes purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Senior Subordinated
Notes, and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Senior Subordinated Notes or beneficial
interests therein purchased by us for our own account or for one or more
accounts (each of which is an institutional "accredited investor") as to each of
which we exercise sole investment discretion.
6. We are not acquiring the Senior Subordinated Notes with a view to
any distribution thereof that would violate the Securities Act or the securities
laws of any State of the United States.
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Address
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS...................................... 1
SECTION 1.02. OTHER DEFINITIONS................................ 5
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. 6
SECTION 1.04. RULES OF CONSTRUCTION............................ 6
SECTION 1.05. ACTS OF HOLDERS................................... 7
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING..................................... 7
SECTION 2.02. EXECUTION AND AUTHENTICATION........................ 9
SECTION 2.03. REGISTRAR AND PAYING AGENT.......................... 10
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST................. 10
SECTION 2.05. SECURITYHOLDER LISTS................................ 11
SECTION 2.06. TRANSFER AND EXCHANGE............................... 11
SECTION 2.07. REPLACEMENT SECURITIES.............................. 18
SECTION 2.08. OUTSTANDING SECURITIES; DETERMINATIONS OF
HOLDERS' ACTION..................................... 19
SECTION 2.09. TEMPORARY SECURITIES................................ 19
SECTION 2.10. CANCELLATION........................................ 20
SECTION 2.11. CUSIP NUMBERS....................................... 20
SECTION 2.12. DEFAULTED INTEREST.................................. 20
ARTICLE 3
REDEMPTION
SECTION 3.01. NO REDEMPTION......................................... 20
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES................................ 21
SECTION 4.02. SEC REPORTS.......................................... 21
SECTION 4.03. COMPLIANCE CERTIFICATES.............................. 22
SECTION 4.04. FURTHER INSTRUMENTS AND ACTS......................... 22
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY...................... 22
SECTION 4.06. ANTI-LAYERING........................................ 23
SECTION 4.07. PAYMENT OF TAXES AND OTHER CLAIMS.................... 23
SECTION 4.08. CORPORATE EXISTENCE.................................. 23
SECTION 4.09. MAINTENANCE OF PROPERTIES AND INSURANCE.............. 23
SECTION 4.10. STAY, EXTENSION AND USURY LAWS....................... 23
SECTION 4.11. INVESTMENT COMPANY ACT............................... 24
SECTION 4.12. RULE 144A INFORMATION REQUIREMENT.................... 24
SECTION 4.13. NOTICE OF REGISTRATION DEFAULT....................... 24
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF
SUBSTANTIALLY ALL OF THE ASSETS...................... 24
SECTION 5.02. SUCCESSOR PERSON SUBSTITUTED......................... 24
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.................................... 25
SECTION 6.02. ACCELERATION......................................... 26
SECTION 6.03. OTHER REMEDIES....................................... 26
SECTION 6.04. CONTROL BY MAJORITY.................................. 27
SECTION 6.05. LIMITATION ON SUITS.................................. 27
SECTION 6.06. RIGHTS OF HOLDERS TO RECEIVE PAYMENT................. 27
SECTION 6.07. COLLECTION SUIT BY TRUSTEE........................... 27
SECTION 6.08. TRUSTEE MAY FILE PROOFS OF CLAIM..................... 27
SECTION 6.09. PRIORITIES........................................... 28
SECTION 6.10. UNDERTAKING FOR COSTS................................ 28
SECTION 6.11. WAIVER OF STAY, EXTENSION OR USURY LAWS.............. 28
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.................................... 29
SECTION 7.02. RIGHTS OF TRUSTEE.................................... 30
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE......................... 30
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........................... 31
SECTION 7.08. REPLACEMENT OF TRUSTEE............................... 32
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER.......................... 32
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION........................ 33
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST XXXX XX.... 33
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF XXXX IV'S OBLIGATIONS................. 33
SECTION 8.02. APPLICATION OF TRUST MONEY........................... 34
SECTION 8.03. REPAYMENT TO XXXX XX................................. 34
SECTION 8.04. REINSTATEMENT........................................ 34
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS........................... 34
SECTION 9.02. WITH CONSENT OF HOLDERS.............................. 35
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.................. 36
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS, WAIVERS
AND ACTIONS.......................................... 36
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES................ 36
SECTION 9.06. TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES.............. 36
SECTION 9.07. EFFECT OF SUPPLEMENTAL INDENTURES.................... 36
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE............................ 37
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY................ 37
SECTION 10.03. DEFAULT ON SENIOR INDEBTEDNESS...................... 37
SECTION 10.04. NO SUSPENSION OF REMEDIES........................... 38
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER................. 39
SECTION 10.06. NOTICE BY XXXX XX................................... 39
SECTION 10.07. SUBROGATION......................................... 39
SECTION 10.08. RELATIVE RIGHTS..................................... 39
SECTION 10.09. NO WAIVER OF SUBORDINATION PROVISIONS............... 40
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE............ 40
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.................. 41
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION; NO
FIDUCIARY DUTY TO HOLDERS OF SENIOR INDEBTEDNESS.... 41
SECTION 10.13. MISCELLANEOUS....................................... 41
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS........................ 42
SECTION 11.02. NOTICES............................................. 42
SECTION 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS......... 43
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.. 43
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION....... 43
SECTION 11.06. SEVERABILITY CLAUSE................................. 44
SECTION 11.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR........ 44
SECTION 11.08. LEGAL HOLIDAYS...................................... 44
SECTION 11.09. GOVERNING LAW....................................... 44
SECTION 11.10. NO RECOURSE AGAINST OTHERS.......................... 44
SECTION 11.11. SUCCESSORS.......................................... 44
SECTION 11.12. MULTIPLE ORIGINALS.................................. 44
