EXHIBIT 4.1
Execution Copy
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XXXX XX INDUSTRIES, INC., as Issuer
and
FLEET NATIONAL BANK, as Trustee
______________________________________
INDENTURE
Dated as of March 11, 1996
_________________________________________
$250,000,000
7 3/4% Senior Subordinated Notes due 2006
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CROSS REFERENCE TABLE/1/
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
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 March 11, 1996, between Xxxx XX Industries,
Inc., a Delaware corporation ("Xxxx XX" or the "Company"), and Fleet National
Bank, a national banking association (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 3/4%
Senior Subordinated Notes due 2006 (the "Series A Notes") and the new 7 3/4%
Senior Subordinated Notes due 2006 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
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SECTION 1.01. Definitions.
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"Acquired Indebtedness" means Indebtedness of a Person (i) assumed in
connection with an acquisition of assets or properties from such Person or (ii)
existing at the time such Person becomes a Subsidiary of any other Person (in
each case other than any Indebtedness incurred in connection with, or in
contemplation of, such acquisition or such Person becoming such a Subsidiary).
"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.
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its
businesses (including by way of a sale-and-leaseback and including the sale or
other transfer of any of the Capital Stock of any Subsidiary of such Person), in
a single transaction or through a series of related transactions, for aggregate
consideration received by such Person or a Subsidiary of such Person, net of the
out-of-pocket costs relating thereto (including, without limitation, legal,
accounting and investment banking fees and sales commissions), in excess of
$50,000,000. For purposes of this definition, consideration shall include,
without limitation, any indebtedness for borrowed money of such Person or such
Subsidiary that is assumed by the transferee of any assets or any such
indebtedness of any Subsidiary of Xxxx XX whose stock is purchased by the
transferee.
"Average Life" means, as of the date of determination, with respect to
any debt security, the quotient obtained by dividing (i) the sum of the products
of the numbers of years from the date of determination to the dates of each
successive scheduled principal payment (assuming the exercise by the obligor of
such debt security of all unconditional (other than as to the giving of notice)
extension options of each such scheduled payment date) of such debt security
multiplied by the amount of such principal payment by (ii) the sum of all such
principal payments.
"Board of Directors" of any corporation means the Board of Directors
of such corporation, or any duly authorized committee of such Board of
Directors.
"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.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock (including
common or preferred stock) or partnership interests.
"Cash Equivalents" means (i) Marketable Equity Securities and (ii)
Investment Grade Securities.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the sum of, without duplication, (i) Consolidated Net Income, (ii)
Consolidated Interest Expense, (iii) Consolidated Income Tax Expense and (iv)
depreciation and amortization expenses, all as determined on a consolidated
basis in accordance with GAAP consistently applied.
"Consolidated Cash Flow/Fixed Charge Coverage Ratio" means, with
respect to any Person for any period, the ratio of Consolidated Cash Flow to
Consolidated Fixed Charges.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum of (i) Consolidated Interest Expense and (ii) all cash preferred
dividends.
"Consolidated Income Tax Expense" means, with respect to any Person
for any period, the provision for federal, state, local and foreign income taxes
of such Person and its Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP consistently applied.
"Consolidated Interest Expense" means, with respect to any Person for
any period, without duplication, the sum of (i) the interest expense of such
Person and its Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP consistently applied, including, without
limitation, (a) any amortization of debt discount, (b) the net cost of Interest
Rate Protection Obligations (including any amortization of discounts), (c) the
interest portion of any deferred payment obligation, (d) all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and (e) all accrued interest, and (ii) the
interest component of Capital Lease Obligations paid, accrued and/or scheduled
to be paid or accrued by such Person and its Subsidiaries during such period as
determined on a consolidated basis in accordance with GAAP consistently applied.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate net income (or loss) of such Person and its Subsidiaries
for such period, before extraordinary items and the cumulative effect of a
change in accounting principles (as each such term is defined under GAAP) of
such Person and its Subsidiaries, on a consolidated basis, determined in
accordance with GAAP consistently applied, adjusted by excluding (i) any net
gains or losses in respect of disposition of assets other than in the ordinary
course of business; (ii) any gains or losses from currency exchange
transactions; (iii) any gains or losses realized from the termination of any
employee pension benefit plan; (iv) any gains or losses realized upon the
refinancing of any of such Person's Indebtedness; (v) any settlement or judgment
with respect to litigation not in the ordinary course of business; (vi) any
gains or
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losses arising from the destruction of property due to fire or other casualty;
(vii) any gains or losses from the revaluation of property or assets; (viii) the
net income (or loss) accounted for by the equity method of accounting, except
for dividends or other distributions actually received by such Person or its
Subsidiaries (provided that for purposes of any calculation of the Consolidated
Cash Flow/Fixed Charge Coverage Ratio, Consolidated Net Income for such Person
and its Subsidiaries shall exclude the net income (or loss) otherwise included
pursuant to this clause (viii)); and (ix) the net income of any Subsidiary to
the extent that such net income has any restrictions or encumbrances on making
distributions to such Person.
"Consolidated Net Worth" means, at any date of determination, the sum
of the Capital Stock and additional paid-in capital plus retained earnings (or
minus accumulated deficit) of any Person and its Subsidiaries on a consolidated
basis, excluding amounts attributable to Redeemable Stock and excluding charges
to net worth due to the prepayment of the Credit Agreement, each item to be
determined in accordance with GAAP consistently applied.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date hereof or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Credit Agreement" means the $650,000,000 Credit and Guarantee
Agreement, dated as of November 2, 1994, as amended from time to time, by and
among the Company, certain Subsidiaries of the Company, as Guarantors, Bank of
America National Trust and Savings Association, as administrative agent and bid
agent, and the banks and other financial institutions that are signatories
thereto, and any refinancings or replacements thereof providing for Indebtedness
of up to $700,000,000, less, in the case of any such refinancings or
replacements, the amount of all permanent reductions thereunder; provided,
however, under no circumstances will such permanent reductions reduce the amount
of Indebtedness permitted under clause (ii) of the definition of "Permitted
Indebtedness" below $500,000,000.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Domestic Credit Facilities" means any U.S.-dollar denominated credit
facilities providing for extensions of credit to Xxxx XX or any domestic
Subsidiary thereof in an aggregate amount not exceeding the credit line
originally available under the Credit Agreement less the amount of all permanent
commitment reductions under the Credit Agreement.
"8 3/4% Notes" means the Company's 8 3/4% Senior Subordinated Notes
due April 1, 2003.
"8 3/4% Note Indenture" means the Indenture, dated as of March 15,
1993, between the Company and Citibank, N.A., as trustee, pursuant to which the
8 3/4% Notes were issued.
"Equity Interests" means Capital Stock, warrants, options or other
rights to acquire Capital Stock (but excluding any debt security which is
convertible into, or exchangeable for, Capital Stock).
"Existing Indebtedness" means Indebtedness of Xxxx XX and its
Subsidiaries in existence on the date of this Indenture.
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"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.
"Foreign Credit Facilities" means any foreign currency denominated
credit facilities providing for extensions of credit to Xxxx XX or any
Subsidiary thereof or U.S.-dollar denominated extensions of credit to any
foreign Subsidiary of Xxxx XX, in either case in amounts not exceeding, in the
aggregate, the credit lines of such facilities existing on the date of this
Indenture but in no event greater than $100,000,000.
"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.
"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.
"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
4
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.
"Investment Grade" means a rating by S&P of BBB- or higher or by
Moody's of Baa3 or the equivalent thereof by S&P or Moody's.
"Investment Grade Securities" means (i) any evidence of indebtedness,
maturing not more than 180 days after the date of acquisition, issued or fully
guaranteed or insured by the United States of America, or an instrumentality or
agency thereof (provided that the full faith and credit of the United States of
America is pledged in support thereof), (ii) any certificate of deposit,
overnight bank deposit or bankers acceptance, maturing not more than 180 days
after the date of acquisition, issued by, or time deposit of, a commercial
banking institution which has capital and surplus in excess of $500,000,000
rated, at the time as of which any investment therein is made, A-1 or better by
S&P or P-1 or better by Moody's or the equivalent of such rating by a successor
rating agency, (iii) commercial paper, maturing not more than 90 days after the
date of acquisition, issued by a corporation (other than an Affiliate or
Subsidiary of the Company) organized and existing under the laws of the United
States of America or any State thereof or the District of Columbia which is
rated, at the time as of which any Investment therein is made, P-1 or better by
Moody's or A-l or better by S&P on the equivalent of such rating by a successor
rating agency, (iv) money market funds issued or offered by any domestic
commercial bank which has capital and surplus in excess of $500,000,000 and (v)
any other debt instrument rated, at the time as of which any investment therein
is made, BBB-or better by S&P or Baa-3 or better by Moody's or the equivalent of
such rating by a successor rating agency.
"Lien" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give any security interest in and any filing or other agreement to give
any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
"Liquidated Damages" means, with respect to any Securities, all unpaid
liquidated damages owing by the Company pursuant to Section 5 of the
Registration Rights Agreement for such Securities.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"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.
"Permitted Indebtedness" means (i) prior to any refinancing or
replacement of the Credit Agreement as in effect on March 5, 1996, (a)
Indebtedness under the Domestic Credit Facilities or any refinancing or
replacement thereof and (b) Indebtedness under the Foreign Credit Facilities or
any
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refinancing or replacement thereof; (ii) subsequent to any refinancings or
replacements of the Credit Agreement as in effect on March 5, 1996, Indebtedness
under such refinancings or replacements; (iii) Existing Indebtedness; (iv)
Indebtedness represented by the Securities; (v) Interest Rate Protection
Obligations covering Indebtedness (which Indebtedness (A) bears interest at
fluctuating interest rates and (B) is otherwise permitted to be incurred under
Section 4.08) to the extent that the notional principal amount of such Interest
Rate Protection Obligations does not exceed the principal amount of the
Indebtedness to which such Interest Rate Protection Obligations relate; (vi)
Indebtedness of any Subsidiary of Xxxx XX to Xxxx XX or any other Subsidiary of
Xxxx XX and Indebtedness of Xxxx XX to any Subsidiary of Xxxx XX of which, at
the time such Indebtedness is created or incurred, Xxxx XX owns or controls,
directly or indirectly, at least 66 2/3% of the combined voting power of all
such Subsidiary's then outstanding Capital Stock; (vii) Indebtedness arising
from guarantees of Indebtedness incurred in the ordinary course of business to
suppliers, licensees, franchisees or customers; (viii) Indebtedness arising from
performance bonds provided by Xxxx XX in the ordinary course of business; (ix)
Indebtedness arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within five days of
incurrence; (x) Indebtedness represented by letters of credit issued in the
ordinary course of business, and not issued pursuant to the Domestic Credit
Facilities or the Foreign Credit Facilities, or any refinancings thereof, or
subsequent to any refinancing or replacement of the Credit Agreement as in
effect on March 5, 1996, pursuant to such refinancings or replacements, in an
aggregate principal amount not to exceed $50,000,000 at any time; (xi) other
Indebtedness in an amount not to exceed $65,000,000 at any time; and (xii)
Indebtedness, the proceeds of which are used to redeem, refund, replace, reduce,
extend, discharge or otherwise retire for value or refinance any Indebtedness of
Xxxx XX or a Subsidiary thereof (such new Indebtedness being "Refinancing
Indebtedness") not to exceed the amount (or, if such Refinancing Indebtedness is
issued at a price less than the principal amount thereof, with an original issue
price) so refinanced (plus accrued interest and reasonable fees and expenses
related thereto); provided, however, that (a) such Refinancing Indebtedness
shall rank in right of payment to the Securities at least to the same extent as
the Indebtedness to be refinanced, (b) such Refinancing Indebtedness shall have
an Average Life and stated maturity equal to, or greater than, the Average Life
and stated maturity of the Indebtedness to be refinanced and (c) the proceeds of
such Refinancing Indebtedness, if incurred by a Subsidiary of Xxxx XX, shall not
be used to refinance (X) Indebtedness of Xxxx XX or (Y) Indebtedness of another
Subsidiary of Xxxx XX that is subordinated to Senior Indebtedness.
"Permitted Liens" means, with respect to any Person, (i) pledges or
deposits by such Person under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Indebtedness) or leases
to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or United States Government bonds
to secure surety or appeal bonds to which such Person is a party, or deposits as
security for contested taxes or for the payment of rent, (ii) Liens (as defined)
imposed by law, such as carriers', warehousemen's and mechanics' liens, bankers'
liens, (iii) Liens for taxes not yet subject to penalties for non-payment or
which are being contested in good faith and by appropriate proceedings, if
adequate reserves, as may be required by GAAP, shall have been made therefor,
(iv) Liens upon specific items of inventory or other goods and proceeds of any
Person securing the Person's obligations in respect of banker's acceptances
issued or created for the account of such Person to facilitate the shipping or
storage of such inventory or other goods, (v) Liens in favor of customs and
revenue authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods, (vi) Liens arising out of
consignment or similar arrangements for the sale of goods entered into by Xxxx
XX or any of its Subsidiaries in the ordinary course of business in accordance
with the past practices of Xxxx XX, and each of its Subsidiaries, (vii) Liens
arising from
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filing UCC financing statements regarding leases (other than capital leases),
(viii) Liens arising in connection with or out of any commercial letters of
credit, (ix) such other nonconsensual Liens as may arise in the ordinary course
of business of Xxxx XX or any of its Subsidiaries and as do not materially
impair the use of the property subject thereto in the course of such business,
(x) Liens in favor of issuers of surety bonds (other than to satisfy or stay any
judgment or judgments in excess of $1,000,000 individually or $3,000,000 in the
aggregate) issued pursuant to the request of and for the account of such Person
in the course of its business, (xi) Liens in connection with any legal
proceedings (including legal proceedings instituted by Xxxx XX or any of its
Subsidiaries) which are being contested in good faith and by appropriate
proceedings, including appeals of judgments as to which a stay of execution
shall have been issued, provided that adequate reserves have been established
with respect thereto in accordance with GAAP and no property of Xxxx XX or any
of its Subsidiaries is in imminent danger of being lost or forfeited as a result
thereof, and (xii) survey exceptions, encumbrances, easements or reservations
of, or rights of others for, rights of way, sewers, electric lines, telegraph
and telephone lines and other similar purposes, or zoning or other restrictions
as to the use of real properties or Liens incidental to the conduct of the
business of such Person or to the ownership of its properties.
"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.
"Redeemable Stock" means any 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.
"Refinancing Indebtedness" shall have the meaning prescribed in the
definition of Permitted Indebtedness.
"Registration Default" shall have the meaning set forth in Section 5
of the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement dated March 11, 1996, between the Initial Purchaser and the Company,
as such agreement may be amended, modified or supplemented from time to time.
"S&P" means Standard and Poor's Corporation and its successors.
"SEC" means the Securities and Exchange Commission.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on any Indebtedness of Xxxx XX, whether outstanding on the date of this
Indenture or hereafter 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 Xxxx XX 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 8 3/4% Notes.
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"SFAS 121" means Statement No. 121--Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to be Disposed of--issued in March
1995 by the Financial Accounting Standards Board.
"Stated Maturity," when used with respect to any Security, means the
date specified in such Security as the fixed date on which an amount equal to
the principal of such Security is due and payable.
"Subsidiary" means any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by 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(b).
"Trust Officer," when used with respect to the Trustee, means any
officer in the Corporate Trust Administration Department of the Trustee or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers 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.
"Wholly-owned Subsidiary" of any Person means any Subsidiary of such
Person to the extent the entire voting share capital of such Subsidiary is owned
by such Person (either directly or indirectly through Wholly-owned
Subsidiaries).
SECTION 1.02. Other Definitions.
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Defined in
Term Section
--------------------------------------- -----------
"Act"............................. 1.05
"Bankruptcy Law".................. 6.01
"Change of Control"............... 4.11
"Change of Control Offer"......... 4.11
"Change of Control Payment Date".. 4.11
"Custodian"....................... 6.01
"DTC"............................. 2.03
"Event of Default"................ 6.01
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"Exchange Act".................... 4.02
"Global Note Custodian"........... 2.03
"incurrence"...................... 4.08
"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
"Restricted Payments"............. 4.06
"Securities Act".................. 7.04
"surviving entity"................ 5.01
"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
9
(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.
SECTION 1.06. Exchange Rates. Except as otherwise required under
--------------
GAAP or in connection with the preparation of any financial statements, any
computation of the U.S. dollar equivalent of any foreign currency required for
any calculation or computation under this Indenture (including, without
limitation, in connection with the limitations under the definitions of "Foreign
Credit Facilities" and "Consolidated Net Income" and Section 4.03) shall be made
at the exchange rate published in The
00
Xxxx Xxxxxx Journal which is in effect as of the close of business on the first
Business Day in the month in which such computation is required to be made
hereunder.
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
---------
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.
Securities issued in global form shall be substantially in the form of
Exhibit A attached hereto (including the text referred to in footnotes 1 and 2
---------
thereto). Securities issued in definitive form shall be substantially in the
form of Exhibit A attached hereto (but without including the text referred to in
---------
footnotes 1 and 2 thereto). 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 redemptions. 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
Global Note Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06.
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 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.
11
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 Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as custodian with respect to the Global Notes (in such
custodial capacity, the "Global Note Custodian").
SECTION 2.04. Paying Agent to Hold Money in Trust. Except as
-----------------------------------
otherwise provided herein, prior to each due date of the principal, premium, if
any, and interest on any Security, Xxxx XX shall deposit with the Paying Agent a
sum of money sufficient to pay such principal, premium and Liquidated Damages,
if any, 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, premium and Liquidated Damages,
if any, and interest on the Securities (whether such money has been
12
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) Upon surrender for
---------------------
registration of transfer of any Security at the office or agency of Xxxx XX
designated as Registrar or co-registrar pursuant to Section 2.03 or at the
office or agency referred to in Section 4.05, Xxxx XX shall execute, and the
Trustee shall authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations, of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, Xxxx
XX shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
When Securities are presented to the Registrar with the request: (x)
to register the transfer of such Securities; or (y) to exchange such
Securities for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met; provided, however,
that the Securities presented or surrendered for register of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar and the Trustee, duly
executed by the Holder thereof or by his attorney, duly authorized in
writing; and
(ii) in the case of Transfer Restricted Securities, 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, a certification from such Holder to that effect (in
substantially the form of Exhibit B hereto); or
---------
13
(B) if such Transfer Restricted Security is being transferred to a
qualified institutional buyer (as defined in Rule 144A under the
Securities Act) or institutional accredited investor within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act,
in accordance with Rule 144A under the Securities Act or pursuant to
an exemption from registration in accordance with Rules 144 or 145,
Regulation D or Regulation S under the Securities Act or pursuant to
an effective registration statement under the Securities Act, a
certification to that effect (in substantially the form of Exhibit B
---------
hereto).
(b) Legends.
(i) Except as permitted by the following paragraph (ii), 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 satisfying
the conditions set forth in subclause (3) of the legend set forth in the
immediately preceding paragraph (i) above and in connection with the
Exchange Offer, the Registrar shall permit the Holder thereof to exchange
such Transfer Restricted Security for a Security that does not bear the
legend set forth above and, upon transfer of such Transfer Restricted
Security, the restrictions contained in such legend shall be no longer
applicable.
(c) Obligations with respect to Transfers and Exchanges of Securities.
14
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by Xxxx XX or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to Xxxx XX and the Registrar duly executed by the Holder or his
attorney duly authorized in writing.
Xxxx XX or the Trustee shall not charge the Holder a service charge
for any registration of transfer or exchange, but Xxxx XX or the Trustee may
require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges that may be imposed in connection with the transfer or
exchange of the Securities from the Holder requesting such transfer or exchange
(other than any exchange of a temporary Security for a definitive Security not
involving any change in ownership).
Xxxx XX shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed.
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
15
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 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
16
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, premium and Liquidated Damages, if any, 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, premium and Liquidated Damages, if any, or 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, premium and Liquidated Damages, if any, 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
17
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.
18
(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. Limitation on Restricted Payments. Until such time as
---------------------------------
the Securities are rated Investment Grade, Xxxx XX shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, (i) declare or pay
any dividend on, or make any distribution in respect of, Xxxx IV's or any of its
Subsidiaries' Capital Stock or other Equity Interests, except to the extent any
such dividend or distribution is actually received by Xxxx XX or a Subsidiary
thereof, (ii) purchase, redeem or otherwise acquire or retire for consideration
any Capital Stock or other Equity Interests of Xxxx XX or any of its
Subsidiaries (other than Equity Interests of Xxxx IV's Wholly-owned
Subsidiaries) or voluntarily purchase, redeem or otherwise acquire or retire for
consideration, prior to a scheduled mandatory sinking fund payment date or
maturity date (including, but not limited to, by substantive or legal
defeasance), any Indebtedness of Xxxx XX that is junior in right of payment to
the Securities other than in connection
19
with the refinancing of such Indebtedness to the extent permitted by this
Indenture and certain intercompany Indebtedness between Xxxx XX and any of its
Subsidiaries or between such Subsidiaries (each such declaration, distribution,
purchase, redemption, acquisition, retirement, loan, advance or other investment
being referred to as a "Restricted Payment"), if at the time of such action, or
after giving effect to such Restrict Payment:
(a) an Event of Default or a Default shall have occurred and be
continuing;
(b) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments declared or made after March 15, 1993, exceeds the sum
of: (w) 50% of the cumulative Consolidated Net Income (including any gains or
losses attributable to Asset Sales, net of related tax costs or tax benefits, as
the case may be, during the applicable reference period but excluding non-cash
charges resulting from the adoption by the Company of SFAS 121 and/or other new
accounting standards consistent with GAAP), for the period commencing on March
1, 1993 through the last day of the fiscal quarter immediately preceding such
proposed Restricted Payment (or if Consolidated Net Income shall be a deficit,
minus 100% of such deficit); (x) the aggregate net cash proceeds and the fair
market value (as determined in good faith by the Board of Directors) of
marketable securities or other property, if any, received by Xxxx XX (other than
from a Subsidiary of Xxxx XX) from the issuance and sale of either Capital Stock
(other than Redeemable Stock) or Indebtedness that is convertible into Capital
Stock, to the extent such Indebtedness is actually converted into Capital Stock
after March 15, 1993; (y) the fair market value (as determined in good faith by
the Board of Directors) of any shares of Capital Stock (other than Redeemable
Stock) of Xxxx XX issued after March 15, 1993 pursuant to a plan or other
arrangement approved by the Compensation Committee of the Board of Directors, to
or for the benefit of any employee of Xxxx XX or any of its Subsidiaries or to
or by any employee stock ownership plan or similar trust for the benefit of any
such employee, in each case to the extent such value is includable as
compensation expense in the computation of Consolidated Net Income; and (z)
$45,000,000; or
(c) Xxxx XX could not incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to the first paragraph of Section
4.08.
The foregoing provisions will not prohibit, so long as no Default or
Event of Default shall have occurred and be continuing: (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at the date of
declaration thereof such payment would comply with the provisions of this
Indenture; (ii) the declaration or payment of any dividend on shares of Capital
Stock payable solely in shares of Capital Stock of Xxxx XX (other than
Redeemable Stock); or (iii) the declaration or payment of a regular quarterly
dividend in respect of the Capital Stock of Xxxx XX at a rate not to exceed
$0.10 per share.
The amount of any dividend or other distribution (other than cash)
shall be equal at least to the "fair market value" of the asset(s) proposed to
be transferred by the Company or such Subsidiary, as the case may be, pursuant
to such dividend or other distribution. For purposes of this Section 4.06,
"fair market value" shall mean, with respect to any asset, the price which could
be negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing buyer, neither of which is under pressure or
compulsion to complete the transaction; provided, however, that the fair market
value of any asset or assets of the Company or any such Subsidiary shall be
determined by the Board of Directors of the Company, acting in good faith.
Xxxx XX shall deliver to the Trustee within 60 days after the end of
each of Xxxx IV's fiscal quarters (90 days after the end of Xxxx IV's last
fiscal quarter of each year) in which a Restricted
20
Payment is made under the first paragraph of this Section 4.06, an Officers'
Certificate setting forth each Restricted Payment made in such fiscal quarter,
stating that each such Restricted Payment is permitted and setting forth the
basis upon which the calculations required by this Section 4.06 were computed,
which calculations may be based on Xxxx IV's latest available internal financial
statements.
SECTION 4.07. Limitation on Other Senior Subordinated Indebtedness.
----------------------------------------------------
Until such time as the Securities are rated Investment Grade, Xxxx XX will not
incur, issue, create, assume, guarantee or otherwise become liable for any
Indebtedness that is contractually subordinated in right of payment to any
Senior Indebtedness and contractually senior in right of payment to the
Securities.
SECTION 4.08. Limitation on Additional Indebtedness. Until such time
-------------------------------------
as the Securities are rated Investment Grade, Xxxx XX shall not, and shall not
permit any of its Subsidiaries, directly or indirectly, to create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable with respect
to (collectively, an "incurrence") any Indebtedness, including, without
limitation, Acquired Indebtedness but excluding Permitted Indebtedness;
provided, however, that Xxxx XX or any Subsidiary thereof may incur any
Indebtedness if (i) no Default or Event of Default shall have occurred and be
continuing after giving effect to the incurrence of such Indebtedness and (ii)
after giving pro forma effect thereto, the Consolidated Cash Flow/Fixed Charge
Coverage Ratio of Xxxx XX for its four full fiscal quarters ending immediately
prior to the date of the incurrence of such additional Indebtedness is at least
2.0 to 1.0. Such Consolidated Cash Flow/Fixed Charge Coverage Ratio shall be
calculated on a pro forma basis after giving effect to, among other things, (i)
the incurrence of such Indebtedness and (if applicable) the application of the
net proceeds thereof to refinance other Indebtedness as if such Indebtedness
were incurred and such application of proceeds occurred at the beginning of such
four quarter period, (ii) the incurrence and retirement of any other
Indebtedness since the last day of the last fiscal quarter within such four
quarter period as if such incurrence and retirement occurred at the beginning of
such four quarter period, (iii) the acquisition by Xxxx XX (directly or through
a Subsidiary of Xxxx XX) of any company or business acquired during such four
quarter period, and any acquisition proposed to be consummated contemporaneously
with the incurrence of such Indebtedness, as if such acquisition (and
contemporaneous incurrence of Indebtedness) occurred at the beginning of such
four quarter period and (iv) the interim investment of the net proceeds of such
Indebtedness (pending final application thereof for the purpose for which such
Indebtedness is stated to be incurred) in securities of the type permitted or
contemplated by the terms of the instruments evidencing, creating or governing
such Indebtedness, as if such Indebtedness was incurred and such interim
investment of proceeds occurred at the beginning of such four quarter period.
Any additional Indebtedness incurred pursuant to this Section 4.08
shall be subject to the limitations set forth in Section 4.07.
SECTION 4.09. Limitation on Indebtedness of Subsidiaries. Until such
------------------------------------------
time as the Securities are rated Investment Grade, Xxxx XX shall not permit its
Subsidiaries to incur any Indebtedness (other than Acquired Indebtedness) that
is subordinated to Senior Indebtedness in an amount in excess of $25,000,000 in
the aggregate at any time outstanding, unless such Indebtedness is also
contractually subordinated to the Securities.
Any additional Indebtedness incurred pursuant to this Section 4.09
shall also be subject to the limitations set forth in Section 4.08.
21
SECTION 4.10. Limitation on Liens. Until such time as the Securities
-------------------
are rated Investment Grade, Xxxx XX shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien on any of their respective assets, now owned or hereafter
acquired, or any properties or income therefrom securing any Indebtedness that
is pari passu with or contractually subordinated in right of payment to the
Securities other than:
(a) Liens outstanding immediately prior to the date of this Indenture,
including Liens securing or arising under or in connection with Existing
Indebtedness;
(b) Permitted Liens;
(c) any extension, renewal or replacement (or successive extensions,
renewals or replacements) of Liens permitted by this Section 4.10; provided
that the terms and conditions of any such extension, renewal or replacement
(or successive extensions, renewals or replacements) are not less favorable
to the Holders than those relating to the Liens so extended, renewed or
replaced and no additional property or assets are encumbered as a result of
such extension, renewal or replacement (or successive extension, renewal or
replacement);
(d) the Lien granted to the Trustee pursuant to Section 7.07; and
(e) Liens securing Acquired Indebtedness; provided, that such Liens attach
solely to the assets of the acquired entity,and do not extend to or cover
any assets of Xxxx XX or its Subsidiaries.
SECTION 4.11. Repurchase Upon Change of Control. Upon the occurrence
---------------------------------
of a Change of Control, each Holder shall have the right to require the
repurchase of such Holder's Securities pursuant to the offer described below
(the "Change of Control Offer") at a purchase price equal to 101% of the
aggregate principal amount of the Securities to be repurchased plus accrued and
unpaid interest and Liquidated Damages, if any, to the date of purchase.
Immediately following any Change of Control, Xxxx XX shall mail a notice to the
Trustee and to each Holder stating: (1) that the Change of Control Offer is
being made pursuant to this Section 4.11 and that all Securities tendered will
be accepted for payment; (2) the purchase price and the purchase date (which
shall be no earlier than 30 days nor later than 60 days from the date such
notice is mailed) (the "Change of Control Payment Date"); (3) that any Security
not tendered will continue to accrue interest; (4) that, unless Xxxx XX defaults
in the payment thereof, all Securities accepted for payment pursuant to the
Change of Control offer shall cease to accrue interest and Liquidated Damages,
if any, on and after the Change of Control Payment Date; (5) that Holders
electing to have any Securities purchased pursuant to a Change of Control offer
will be required to surrender the Securities to be purchased to the Paying Agent
at the address specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control Payment Date; (6) that
Holders will be entitled to withdraw their election on the terms and conditions
set forth in such notice; and (7) that Holders whose Securities are being
purchased only in part will be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered; provided that the
portion of each Security purchased and each such new Security issued shall be in
a principal amount of $1,000 or integral multiples thereof.
22
On the Change of Control Payment Date, Xxxx XX shall (1) accept for
payment all Securities or portions thereof tendered pursuant to the Change of
Control Offer, (2) deposit with the Paying Agent money sufficient to pay the
purchase price of all Securities or portions thereof so tendered and not
withdrawn, and (3) deliver or cause to be delivered to the Trustee all
Securities so tendered and not withdrawn together with an Officers' Certificate
specifying the Securities or portions thereof tendered to Xxxx XX. The Paying
Agent shall promptly mail to each Holder of Securities so tendered and not
withdrawn, payment in an amount equal to the purchase price for such Securities,
and the Trustee shall promptly authenticate and mail to such Holder a new
Security equal in principal amount to any unpurchased portion of the Securities
surrendered. Xxxx XX will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
Xxxx XX will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Securities triggered by a Change of Control.
A "Change of Control" shall be deemed to have occurred at such time as
either of the following events shall occur:
(i) there is consummated any consolidation or merger of Xxxx XX (A) in
which Xxxx XX is not the continuing or surviving corporation or (B)
pursuant to which the Common Stock of Xxxx XX would be converted into cash,
securities or other property, in each case other than a consolidation or
merger of Xxxx XX in which the holders of the Common Stock outstanding
immediately prior to the consolidation or merger hold, directly or
indirectly, at least a majority of the common stock of the continuing or
surviving corporation immediately after such consolidation or merger or the
majority of the members of the board of directors of the surviving entity
immediately after such consolidation or merger are Continuing Directors; or
(ii) there is filed a report on Schedule 13D or 14D-1 (or any
successor schedule, form or report) pursuant to the Exchange Act,
disclosing that any person (defined, solely for the purposes of this
Section 4.11, as the term "person" is used in Section 13(d)(3) or Section
14(d)(2) of the Exchange Act or any successor provision to either of the
foregoing) has become the beneficial owner (as the term "beneficial owner"
is defined under Rule 13d-3 or any successor rule or regulation promulgated
under the Exchange Act) of 50% or more of the combined voting power of all
the Company's then outstanding securities entitled to vote generally for
the election of directors; provided, however, that a person shall not be
deemed to be the beneficial owner of, or to own beneficially, (A) any
securities tendered pursuant to a tender or exchange offer made by or on
behalf of such person or any of such person's Affiliates or associates
until such tendered securities are accepted for purchase or exchange
thereunder, or (B) any securities if such beneficial ownership (1) arises
solely as a result of a revocable proxy delivered in response to a proxy or
consent solicitation made pursuant to the applicable rules and regulations
under the Exchange Act, and (2) is not also then reportable on Schedule 13D
(or any successor schedule) under the Exchange Act.
Notwithstanding anything to the contrary set forth in this Section 4.11, a
Change of Control shall not be deemed to have occurred under clause (ii) of the
immediately preceding paragraph solely by virtue of Xxxx XX, any Subsidiary
thereof, any employee stock ownership plan or any other employee benefit plan of
Xxxx XX or any such Subsidiary or any other person holding securities of Xxxx XX
for or pursuant to the terms of any such employee benefit plan, filing or
becoming obligated to file a report under or in response to Schedule 13D or
Schedule 14D-1 (or any successor schedule, form or report)
23
under the Exchange Act, disclosing beneficial ownership by it of securities of
the Company, whether in excess of 50% of the combined voting power of the
Company's then outstanding securities entitled to vote generally for the
election of directors or otherwise.
SECTION 4.12. 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 4.13. 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 4.14. 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 4.14 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 4.15. 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
24
IV (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 4.16. Investment Company Act. Xxxx XX shall not become an
----------------------
investment company subject to registration under the Investment Company Act of
1940, as amended.
SECTION 4.17. Payments for Consents. Neither Xxxx XX nor any of its
---------------------
Subsidiaries shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Securities for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid or agreed to be paid to all Holders of the
Securities which so consent, waive or agree to amend in the time frame set forth
in solicitation documents relating to such consent, waiver or agreement.
SECTION 4.18. Covenant to Comply with Securities Laws upon Purchase of
--------------------------------------------------------
Securities. In connection with any offer to purchase or purchase of Securities
----------
under Section 4.11, Xxxx XX shall (i) comply with Rule 14e-1 under the Exchange
Act, and (ii) otherwise comply with all Federal and state securities laws so as
to permit the rights and obligations under Sections 4.11 to be exercised in the
time and in the manner specified in Sections 4.11.
SECTION 4.19. 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 4.20. Notice of Registration Default. The Company will
-------------------------------
notify the Trustee of the existence of any Registration Default under the
Registration Rights Agreement and of the amount of Liquidated Damages payable as
a result of such Registration Default. Unless and until the Trustee receives
such notice, it may assume that no Registration Default exists and that
Liquidated Damages are not payable by the Company.
ARTICLE 5
SUCCESSOR CORPORATION
---------------------
SECTION 5.01. Merger, Consolidation or Sale of Substantially All of
-----------------------------------------------------
the Assets. Xxxx XX will not consolidate with or into any Person or permit any
----------
Person to merge with or into it or directly
25
or indirectly transfer (by lease, assignment, sale, conveyance or otherwise) all
or substantially all of its properties and assets, in a single transaction or
through a series of related transactions, to another Person or group of
affiliated Persons or permit a Subsidiary of Xxxx XX to enter into any such
transaction or transactions if such transaction or transactions would result in
a direct or indirect transfer (by lease, assignment, sale, conveyance or
otherwise) of all or substantially all of the assets of Xxxx XX and its
Subsidiaries on a consolidated basis, unless:
(1) Xxxx XX shall be the continuing Person, or the Person (if other
than Xxxx XX) formed by such consolidation or into or with which Xxxx XX is
merged or to which the properties and assets of Xxxx XX, substantially as an
entirety, are transferred shall be a corporation organized and existing under
the laws of the United States or any state thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all of the
obligations of Xxxx XX under the Securities and this Indenture;
(2) immediately before and immediately after giving effect to such
transaction, no Event of Default and no Default shall have occurred and be
continuing;
(3) immediately after giving effect to such transaction on a pro forma
basis, the Consolidated Net Worth of the surviving entity shall be equal to or
greater than the Consolidated Net Worth of Xxxx XX immediately before such
transaction; and
(4) until such time as the Securities are rated Investment Grade, the
surviving entity, after giving pro forma effect to such transaction, could incur
$1.00 of additional Indebtedness pursuant to Section 4.08.
In connection with any consolidation, merger or transfer contemplated
hereby, Xxxx XX shall deliver, or cause to be delivered, to the Trustee, in form
and substance reasonably satisfactory to the Trustee, an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and the supplemental indenture in respect thereto comply with this
Section 5.01 and that all conditions precedent herein provided for relating to
such transactions have been complied with.
SECTION 5.02. Successor Corporation 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 corporation 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
corporation 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:
26
(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 or premium or Liquidated Damages, if any, on any
Securities when the same becomes due and payable at maturity, acceleration, on
the Change of Control Payment Date or otherwise;
(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 45 days after receipt by Xxxx XX of a
Notice of Default;
(3) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by Xxxx XX or any of its Subsidiaries (or the
payment of which is guaranteed by Xxxx XX or any of its Subsidiaries) whether
such Indebtedness or guarantee is now existing or hereafter created (other than
Indebtedness of Xxxx XX or any of its Subsidiaries to Xxxx XX or between such
Subsidiaries), if as a result of such default the maturity of such Indebtedness
has been accelerated prior to its express maturity, the Trustee has received
notice of such acceleration from Xxxx XX of any Holder or has otherwise obtained
actual knowledge thereof and the principal amount of such Indebtedness, together
with the principal amount of any other such Indebtedness the maturity of which
has been accelerated, aggregates $25,000,000 or more;
(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;
(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;
27
(D) and in each case the order or decree remains unstayed and in
effect for 60 days; or
(6) final judgments for the payments of money which in the aggregate
exceed $25,000,000 shall be rendered against Xxxx XX or any Subsidiary by a
court and shall remain unstayed or undischarged for a period of 60 days and the
Trustee shall receive notice thereof from Xxxx XX or any Holder or shall
otherwise obtain actual knowledge thereof.
"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 the 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."
In the case of an Event of Default as a result of a failure to comply
with Section 4.11 occurring by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of Xxxx XX with the intention of avoiding payment
of the premium which Xxxx XX would have to pay pursuant to Section 4.11, such
premium shall also become and be immediately due and payable at such time as the
principal and interest on the Securities become due and payable pursuant to
Section 6.02 to the extent permitted by law, anything in this Indenture or in
the Securities contained to the contrary notwithstanding.
SECTION 6.02. Acceleration. If any Event of Default under clauses
------------
(1), (2), (3) or (6) 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, premium and Liquidated
Damages, if any, 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, premium and Liquidated Damages, if any, 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, premium and Liquidated
Damages, if any, or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if 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
28
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. Waiver of Past Defaults. The Holders of a majority in
-----------------------
aggregate principal amount of the Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Holder), may waive an existing
Default or Event of Default and its consequences except (a) an Event of Default
described in Section 6.01(l), or (b) a Default in respect of a provision that
under Section 9.02 cannot be amended without the consent of each Holder
affected. When a Default is waived, it is deemed cured and shall cease to
exist, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
-------------------
aggregate principal amount of the Securities at the time outstanding may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability. The Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.06. 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 6.07. 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, premium or Liquidated Damages, if any, or
interest, in respect of the Securities held by such Holder, on or after
29
the respective due dates expressed in the Securities or any Change of Control
Payment Date 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 6.08. 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 6.09. 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, premium and Liquidated Damages, if any, 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 6.10. 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, premium and Liquidated Damages, if any, and interest, ratably,
without preference or priority of any kind, according to such amounts due and
payable on the Securities for principal, premium and Liquidated Damages, if any,
and interest respectively; and
THIRD: the balance, if any, to Xxxx XX.
30
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
---------------------
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (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 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in aggregate principal amount of the
Securities at the time outstanding.
SECTION 6.12. 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 premium, if
any, 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
31
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 and 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.
32
(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:
--------------------------
33
(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, premium and Liquidated Damages,
if any, or interest on particular Securities.
Xxxx IV's payment obligations pursuant to this Section 7.07 shall
survive 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
34
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, premium and Liquidated Damages, if any, 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
35
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, premium and Liquidated Damages,
if any, 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
36
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 Boards 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. However,
without the consent of each Holder affected thereby, a waiver or an amendment to
this Indenture or the Securities may not:
(1) reduce the percentage of principal amount of the Securities whose
Holders must consent to an amendment or waiver of any provision of this
Indenture or the Securities;
(2) change the Stated Maturity of the principal of, premium or
Liquidated Damages, if any, or any interest on the Securities, or impair the
right to institute suit for the enforcement of any such payment or make any
Security payable in money or securities other than that stated in the Security;
(3) make any change in Article 10 that adversely affects the rights of
any Holder of Securities;
(4) waive a default in the payment of the principal of, premium or
Liquidated Damages, if any, or interest on, any Security;
(5) make any change in the provisions of Sections 4.11, 6.04 or 6.07;
or
37
(6) make any change to Sections 9.01 or 9.02.
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, 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.
38
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, premium and Liquidated Damages, if any, 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.
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, premium or Liquidated
Damages, if any, 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.
39
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, premium or Liquidated
Damages, if any, 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, premium or Liquidated Damages, if any, 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, and/or premium and
Liquidated Damages, if any, or interest then due and payable have been made on
the Securities.
40
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, premium or Liquidated Damages, if
any, 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,
premium or Liquidated Damages, if any, 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, premium or Liquidated Damages, if any, 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.
41
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, premium and
Liquidated Damages, if any, 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,
premium or Liquidated Damages, if any, 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
42
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, premium or Liquidated Damages, if any, 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
43
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:
44
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:
Fleet National Bank
Mail Stop RI/MO/199
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Corporate Trust Administration (Xxxx XX Industries, Inc.)
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:
Fleet National Bank
00 Xxxx Xxxxxx, 00xx Xxxxx
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.
45
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, premium or Liquidated Damages, if any,
or interest installment shall accrue for the intervening period.
46
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.
47
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: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
---------
[FORM OF FACE OF SECURITY]
XXXX XX INDUSTRIES, INC.
7 3/4% Senior Subordinated Note due 2006
CUSIP No. 000000XX0
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 April 1, 2006.
Interest Payment Dates: April 1 and October 1, commencing
October 1, 1996.
Record Dates: March 15 and September 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.
FLEET NATIONAL BANK
By:
-------------------------
Authorized Officer
[FORM OF REVERSE SIDE OF SECURITY]
7 3/4% Senior Subordinated Note due 2006
[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
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. 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."
Capitalized terms used herein have the meaning assigned to them in the
Indenture unless otherwise indicated.
1. Interest
--------
A-2
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 October 1, 1996. 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, premium and
Liquidated Damages, if any, 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 (other than with respect to
the purchase of Securities pursuant to an offer to purchase securities made in
connection with Section 4.11 of the Indenture after such record date). Holders
must surrender Securities to a Paying Agent to collect principal payments. Xxxx
XX will pay principal, premium and Liquidated Damages, if any, 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 March
11, 1996 (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. Requirement that Xxxx XX Offer to Purchase Securities under Certain
-------------------------------------------------------------------
Circumstances
-------------
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Subject to the terms and conditions of the Indenture, Xxxx XX shall become
immediately obligated to offer to purchase the Securities pursuant to Section
4.11 of the Indenture after the occurrence of a Change of Control of Xxxx XX at
a price equal to 101% of aggregate principal amount plus accrued and unpaid
interest and Liquidated Damages, if any, to the date of purchase.
7. 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.
8. 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 transfer 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.
9. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
10. Amendment; Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in 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: (i) default in payment
of the principal amount, premium or Liquidated Damages, if any, or interest, in
respect of the Securities when the same becomes due and payable, subject, in the
case of interest, to the grace period contained in the Indenture; (ii) failure
by Xxxx XX to comply with other agreements in the Indenture or the Securities,
subject to notice and lapse of time; (iii) certain events of acceleration prior
to maturity of certain indebtedness; (iv) certain final judgments which remain
undischarged; or (v) certain events of bankruptcy or insolvency. 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
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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. The Trustee may withhold from Holders notice of any continuing
Default (except a Default in payment of amounts specified in clause (i) above)
if it determines that withholding notice is in their interests.
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, premium or Liquidated Damages,
if any, 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, premium or Liquidated
Damages, if any, and interest on the Securities to maturity, Xxxx XX will be
discharged from the Indenture except for certain Sections thereof.
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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.
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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.
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to elect to have all or any portion of this Security
purchased by Xxxx XX pursuant to Section 4.11 ("Change of Control Offer") of the
Indenture, check the applicable boxes:
[ ] Change of Control Offer:
in whole [ ]
in part [ ]
Amount to be
purchased: $__________
Dated: _________________________ Signature:____________________
(Sign exactly as your
name appears on the
other side of this
Security)
Signature
Guarantee/*/:
________________________________________________________________________________
Social Security Number or
Taxpayer Identification Number:
________________________________________________________________________________
/*/ 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.
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SCHEDULE OF EXCHANGES FOR DEFINITIVE NOTES/1/
The following exchanges of a part of this Global Note for definitive Notes
have been made:
Amount of Principal Amount of this Signature of
Amount of decrease in increase in Global Note authorized officer of
Date of Principal Amount of Principal Amount of following such decrease Trustee or Note
Exchange this Global Note this Global Note (or increase) Custodian
--------------------- ------------------- ------------------------- ---------------------
/1./ This paragraph should be included only if the Note is issued in global
form.
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Exhibit B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF SECURITIES
Re: __% Senior Subordinated Notes due 2006 of Xxxx XX Industries, Inc. (the
"Securities").
This Certificate relates to $_____ principal amount of Securities held by
______ (the "Transferor").
The Transferor has requested the Trustee by written order to exchange or
register the transfer of a Security or Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above captioned Securities and as provided in Section 2.06 of
such Indenture, the transfer of this Security does not require registration
under the Securities Act (as defined below) because:*
[_] Such Security is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.06 of the Indenture).
[_] Such Security is being transferred to a qualified institutional buyer (as
defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")) or an institutional accredited investor within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act, in reliance on Rule
144A or Regulation D under the Securities Act (in satisfaction of Section 2.06
of the Indenture).
[_] Such Security is being transferred in accordance with Rule 144 or Rule
145 or Regulation S under the Securities Act, or pursuant to an effective
registration statement under the Securities Act (in satisfaction of Section
2.06 of the Indenture).
[INSERT NAME OF TRANSFEROR]
By:__________________________
Name:
Title:
Date:
*Check applicable box.
1. This paragraph should be included only if the Note is issued in global
form.
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