THE BLACK & DECKER CORPORATION AND THE BANK OF NEW YORK, AS TRUSTEE 7.125% Senior Notes Due 2011 INDENTURE Dated as of June 5, 2001
Exhibit
4.8
THE BLACK
& XXXXXX CORPORATION
AND
THE BANK
OF NEW YORK,
AS
TRUSTEE
7.125%
Senior Notes Due 2011
Dated as
of June 5, 2001
TABLE OF
CONTENTS
Page |
ARTICLE
I
Definitions
and Incorporation by Reference
|
||
SECTION
1.1.
|
Definitions
|
1
|
SECTION
1.2.
|
Other
Definitions
|
5
|
SECTION
1.3.
|
Incorporation
by Reference of Trust Indenture Act
|
6
|
SECTION
1.4.
|
Rules
of Construction
|
6
|
ARTICLE
II
The
Securities
|
||
SECTION
2.1.
|
Form,
Dating and Terms
|
7
|
SECTION
2.2.
|
Execution
and Authentication
|
15
|
SECTION
2.3.
|
Registrar
and Paying Agent
|
17
|
SECTION
2.4.
|
Paying
Agent To Hold Money in Trust
|
17
|
SECTION
2.5.
|
Securityholder
Lists
|
18
|
SECTION
2.6.
|
Transfer
and Exchange
|
18
|
SECTION
2.7.
|
Form
of Certificate to be Delivered in Connection with Transfers to
Institutional Accredited Investors
|
21
|
SECTION
2.8.
|
Form
of Certificate to be Delivered in Connection with Transfers Pursuant to
Regulation S
|
23
|
SECTION
2.9.
|
Mutilated,
Destroyed, Lost or Stolen Securities
|
24
|
SECTION
2.10.
|
Outstanding
Securities
|
25
|
SECTION
2.11.
|
Temporary
Securities
|
25
|
SECTION
2.12.
|
Cancellation
|
26
|
SECTION
2.13.
|
Payment
of Interest; Defaulted Interest
|
26
|
SECTION
2.14.
|
Computation
of Interest
|
27
|
SECTION
2.15.
|
CUSIP
and ISIN Numbers
|
27
|
ARTICLE
III
Covenants
|
||
SECTION
3.1.
|
Payment
of Securities
|
27
|
SECTION
3.2.
|
Limitation
on Liens
|
28
|
SECTION
3.3.
|
Limitation
on Sale Leaseback Transactions
|
29
|
SECTION
3.4.
|
Maintenance
of Office or Agency
|
29
|
SECTION
3.5.
|
Compliance
Certificate
|
30
|
SECTION
3.6.
|
Statement
by Officers as to Default
|
30
|
SECTION
3.7.
|
Further
Instruments and Acts
|
30
|
i
ARTICLE
IV
Successor
Company
|
||
SECTION
4.1.
|
Merger,
Consolidation or Sale of All or Substantially All Assets of the
Company
|
30
|
ARTICLE
V
Redemption
of Securities
|
||
SECTION
5.1.
|
Optional
Redemption
|
31
|
SECTION
5.2.
|
Applicability
of Article
|
31
|
SECTION
5.3.
|
Election
to Redeem; Notice to Trustee
|
31
|
SECTION
5.4.
|
Selection
by Trustee of Securities to Be Redeemed
|
31
|
SECTION
5.5.
|
Notice
of Redemption
|
32
|
SECTION
5.6.
|
Deposit
of Redemption Price
|
33
|
SECTION
5.7.
|
Securities
Payable on Redemption Date
|
33
|
SECTION
5.8.
|
Securities
Redeemed in Part
|
33
|
ARTICLE
VI
Defaults
and Remedies
|
||
SECTION
6.1.
|
Events
of Default
|
33
|
SECTION
6.2.
|
Acceleration
|
35
|
SECTION
6.3.
|
Other
Remedies
|
35
|
SECTION
6.4.
|
Waiver
of Past Defaults
|
35
|
SECTION
6.5.
|
Control
by Majority
|
36
|
SECTION
6.6.
|
Limitation
on Suits
|
36
|
SECTION
6.7.
|
Rights
of Holders to Receive Payment
|
36
|
SECTION
6.8.
|
Collection
Suit by Trustee
|
36
|
SECTION
6.9.
|
Trustee
May File Proofs of Claim
|
37
|
SECTION
6.10.
|
Priorities
|
37
|
SECTION
6.11.
|
Undertaking
for Costs
|
37
|
ARTICLE
VII
Trustee
|
||
SECTION
7.1.
|
Duties
of Trustee
|
37
|
SECTION
7.2.
|
Rights
of Trustee
|
39
|
SECTION
7.3.
|
Individual
Rights of Trustee
|
40
|
SECTION
7.4.
|
Trustee’s
Disclaimer
|
40
|
SECTION
7.5.
|
Notice
of Defaults
|
40
|
SECTION
7.6.
|
Reports
by Trustee to Holders
|
40
|
ii
SECTION
7.7.
|
Compensation
and Indemnity
|
41
|
SECTION
7.8.
|
Replacement
of Trustee
|
42
|
SECTION
7.9.
|
Successor
Trustee by Xxxxxx
|
42
|
SECTION
7.10.
|
Eligibility;
Disqualification
|
43
|
SECTION
7.11.
|
Preferential
Collection of Claims Against Company
|
43
|
ARTICLE
VIII
Satisfaction
and Discharge of Indenture
|
||
SECTION
8.1.
|
Option
To Effect Legal Defeasance or Covenant Defeasance
|
43
|
SECTION
8.2.
|
Legal
Defeasance and Discharge
|
43
|
SECTION
8.3.
|
Covenant
Defeasance
|
44
|
SECTION
8.4.
|
Conditions
to Legal or Covenant Defeasance
|
44
|
SECTION
8.5.
|
Satisfaction
and Discharge of Indenture
|
46
|
SECTION
8.6.
|
Survival
of Certain Obligations
|
46
|
SECTION
8.7.
|
Acknowledgment
of Discharge by Trustee
|
46
|
SECTION
8.8.
|
Application
of Trust Moneys
|
47
|
SECTION
8.9.
|
Repayment
to the Company; Unclaimed Money
|
47
|
SECTION
8.10.
|
Reinstatement
|
47
|
ARTICLE
IX
Amendments
|
||
SECTION
9.1.
|
Without
Consent of Holders
|
48
|
SECTION
9.2.
|
With
Consent of Holders
|
48
|
SECTION
9.3.
|
Compliance
with Trust Indenture Act
|
49
|
SECTION
9.4.
|
Revocation
and Effect of Consents and Waivers
|
49
|
SECTION
9.5.
|
Notation
on or Exchange of Securities
|
50
|
SECTION
9.6.
|
Trustee
To Sign Amendments
|
50
|
ARTICLE
X
Miscellaneous
|
||
SECTION
10.1.
|
Trust
Indenture Act Controls
|
50
|
SECTION
10.2.
|
Notices
|
50
|
SECTION
10.3.
|
Communication
by Holders with other Holders
|
51
|
SECTION
10.4.
|
Certificate
and Opinion as to Conditions Precedent
|
51
|
SECTION
10.5.
|
Statements
Required in Certificate or Opinion
|
51
|
SECTION
10.6.
|
When
Securities Disregarded
|
52
|
SECTION
10.7.
|
Rules
by Trustee, Paying Agent and Registrar
|
52
|
SECTION
10.8.
|
Legal
Holidays
|
52
|
SECTION
10.9.
|
GOVERNING
LAW
|
52
|
SECTION
10.10.
|
No
Recourse Against Others
|
52
|
SECTION
10.11.
|
Successors
|
53
|
iii
SECTION
10.12.
|
Multiple
Originals
|
53
|
SECTION
10.13.
|
Variable
Provisions
|
53
|
SECTION
10.14.
|
Table
of Contents; Headings
|
53
|
EXHIBIT A | Form of the Initial Security |
EXHIBIT B | Form of the Exchange Security |
iv
CROSS-REFERENCE
TABLE
TIA
Section
|
Indenture
Section
|
310(a)(1)
|
7.10
|
(a)(2)
|
7.10
|
(a)(3)
|
N.A.
|
(a)(4)
|
N.A.
|
(b)
|
7.8;
7.10
|
(c)
|
N.A.
|
311(a)
|
7.11
|
(b)
|
7.11
|
(c)
|
N.A.
|
312(a)
|
2.5
|
(b)
|
0.3
|
(c)
|
0.3
|
313(a)
|
7.6
|
(b)(1)
|
N.A.
|
(b)(2)
|
7.6
|
(c)
|
7.6
|
(d)
|
7.6
|
314(a)
|
3.5;
10.2; 10.5
|
(b)
|
N.A.
|
(c)(1)
|
10.4
|
(c)(2)
|
10.4
|
(c)(3)
|
N.A.
|
(d)
|
N.A.
|
(e)
|
10.5
|
315(a)
|
7.1
|
(b)
|
7.5;
10.2
|
(c)
|
7.1
|
(d)
|
7.1
|
(e)
|
6.11
|
316(a)(last
sentence)
|
10.6
|
(a)(1)(A)
|
6.5
|
(a)(1)(B)
|
6.4
|
(a)(2)
|
N.A.
|
(b)
|
6.7
|
317(a)(1)
|
6.8
|
(a)(2)
|
6.9
|
(b)
|
2.4
|
318(a)
|
10.1
|
N.A.
means Not Applicable.
Note:
This Cross-Reference Table shall not, for any purpose, be deemed to be part of
this Indenture.
v
INDENTURE dated as of June 5, 2001,
between THE BLACK & XXXXXX CORPORATION, a Maryland corporation, and THE BANK
OF NEW YORK, a New York banking corporation, as Trustee.
Each party agrees as follows for the
benefit of the other party and for the equal and ratable benefit of the Holders
of (i) the Company’s 7.125% Senior Notes Due 2011 issued on the date hereof (the
“Initial
Securities”), (ii) if and when issued, additional 7.125% Senior Notes Due
2011 that may be offered from time to time subsequent to the Issue Date (the
“Additional
Securities”), and (iii) if and when issued pursuant to a Registered
Exchange Offer from time to time for Initial Securities or any Additional
Securities as provided in an Exchange and Registration Rights Agreement, the
Company’s 7.125% Senior Notes Due 2011 (the “Exchange
Securities”).
ARTICLE
I
Definitions
and Incorporation by Reference
SECTION
1.1. Definitions.
“Additional Securities” has the meaning
ascribed to it in the second introductory paragraph of this
Indenture.
“Attributable Debt” for a lease means
the carrying value of the capitalized rental obligation determined under
generally accepted accounting principles whether or not such obligation is
required to be shown on the balance sheet as a long-term liability. The carrying
value may be reduced by the capitalized value of the rental obligations,
calculated on the same basis, that any sublessee has for all or part of the same
property.
“Board of Directors” means, as to any
Person, the board of directors of such Person or any duly authorized committee
thereof.
“Board Resolution” means, with respect
to any Person, a resolution of the Board of Directors or of a committee or
person to which or to whom the Board of Directors has properly delegated the
appropriate authority, a copy of which has been certified by the Secretary or an
Assistant Secretary of the Person to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivered to the Trustee.
“Business Day” means a day other than a
Saturday, Sunday or other day on which commercial banking institutions are
authorized or required by law to close in New York City.
“Company” means The Black & Xxxxxx
Corporation or its successor.
“Consolidated Net Tangible Assets”
means total assets less (1) total current liabilities (excluding any Debt which,
at the option of the borrower, is renewable or extendible to a term exceeding 12
months and which is included in current liabilities and further excluding any
deferred income taxes which are included in current liabilities) and (2)
goodwill, patents, trademarks and other like intangibles, all as stated on the
Company’s most recent quarter-end consolidated balance sheet preceding the date
of determination.
“Debt” means any debt for borrowed
money (including the Securities), capitalized lease obligations and purchase
money obligations, or any guarantee of such debt, in any such case that would
appear on the consolidated balance sheet of the Company as a
liability.
“Default” means any event which is, or
after notice or passage of time or both would be, an Event of
Default.
“Definitive Securities” means
certificated Securities.
“DTC” means The Depository Trust
Company, its nominees and their respective successors and assigns, or such other
depository institution hereinafter appointed by the Company.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Exchange and Registration Rights
Agreement” means (i) the Exchange and Registration Rights Agreement dated
the Issue Date among the initial purchasers named therein and the Company, as
the same may be amended, supplemented or modified from time to time and (ii) any
similar exchange and/or registration rights agreement entered into with respect
to any Additional Securities, as any such agreement may be amended, supplemented
or modified from time to time.
“Exchange Securities” has the meaning
ascribed to it in the second introductory paragraph of this
Indenture.
“Exempted Debt” means the sum, without
duplication, of the following items outstanding as of the date Exempted Date is
being determined: (i) Debt incurred after the date of the Indenture and secured
by liens created or assumed or permitted to exist pursuant to paragraph (b)
of Section 3.2 and
(ii) Attributable Debt of the Company and its Subsidiaries in respect of all
sale and lease-back transactions with regard to any Principal Property entered
into pursuant to paragraph (b) of Section 3.3.
“Fiscal Year” means the fiscal year of
the Company.
“Funded Debt” means all Debt having a
maturity of more than one year from the date of its creation or having a
maturity of less than one year but by its terms being renewable or extendible,
at the option of the obligor in respect thereof, beyond one year from its
creation.
“Holder” or “Securityholder” means the Person in
whose name a Security is registered in the Note Register.
2
“Indenture” means this Indenture, as
amended or supplemented from time to time.
“Initial Securities” has the meaning
ascribed to it in the second introductory paragraph of this
Indenture.
“Issue Date” means the date on which
the Initial Securities are originally issued.
“Legal Holiday” has the meaning
ascribed to it in Section 10.8.
“Non-U.S. Person” means a person who is
not a U.S. person, as defined in Regulation S.
“Note Register” means the register of
Securities, maintained by the Registrar, pursuant to Section 2.3.
“Officer” means the Chairman of the
Board, any Vice Chairman of the Board, the President, the Chief Financial
Officer, any Senior Vice President, any Vice President, the Treasurer or the
Secretary of the Company.
“Officers’ Certificate” means a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of the Company.
“Opinion of Counsel” means a written
opinion (subject to customary assumptions, qualifications and exceptions) from
legal counsel who is reasonably acceptable to the Trustee. Unless otherwise
required by the TIA, the counsel may be an employee of or counsel to the
Company.
“Person” means any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, limited liability company, government or any
agency or political subdivision hereof or any other entity.
“principal” of any Debt (including the
Securities) means the principal amount of such Debt plus the premium, if any, on
such Debt.
“Principal Property” means land, land
improvements, buildings and associated factory and laboratory equipment owned or
leased pursuant to a capital lease and used by the Company or any Subsidiary
primarily for manufacturing, assembling, processing, producing, packaging or
storing its products, raw materials, inventories or other materials and supplies
located in the United States and having an acquisition cost plus
capitalized improvements in excess of 2% of Consolidated Net Tangible Assets as
of the date of determination, but shall not include any such property financed
through the issuance of tax exempt governmental obligations, or any such
property that has been determined by Board Resolution of the Company not to be
of material importance to the respective businesses conducted by the Company and
its Subsidiaries taken as a whole, effective as of the date such resolution is
adopted.
3
“QIB” means any “qualified institutional buyer” (as
defined in Rule 144A).
“Redemption Date” means, with respect
to any redemption of Securities, the date of redemption with respect
thereto.
“Registered Exchange Offer” means the
offer which may be made by the Company pursuant to an Exchange and Registration
Rights Agreement to exchange Initial Securities or Additional Securities for
Exchange Securities.
“Regulation S” means
Regulation S under the Securities Act.
“Restricted Period” means the 40
consecutive days beginning on and including the later of (1) the day on which
the Initial Securities are offered to persons other than distributors (as
defined in Regulation S under the Securities Act) and (2) the Issue
Date.
“Restricted Securities Legend” means
the Private Placement Legend set forth in clause (1) of Section 2.1(c)
or the Regulation S Legend set forth in clause (2) of Section 2.1(c),
as applicable.
“Rule 144A” means Rule 144A
under the Securities Act.
“SEC” means the Securities and Exchange
Commission.
“Securities” means the collective
reference to the Initial Securities, Additional Securities, and Exchange
Securities.
“Securities Act” means the Securities
Act of 1933, as amended.
“Securities Custodian” means the
custodian with respect to the Global Security (as appointed by DTC), or any
successor Person thereto and shall initially be the Trustee.
“Stated Maturity” means, with respect
to any security, the date specified in such security as the fixed date on which
the payment of principal of such security is due and payable, including pursuant
to any mandatory redemption provision, but shall not include any contingent
obligations to repay, redeem or repurchase any such principal prior to the date
originally scheduled for the payment thereof.
“Subsidiary” means any corporation,
limited liability company or other business entity of which more than 50% of the
total voting power of the equity interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof or any partnership of which more than 50% of the partners’
equity interests (considering all partners’ equity interests as a single class)
is, in each case, at the time owned or controlled, directly or indirectly, by
the Company, one or more of the Subsidiaries of the Company, or combination
thereof.
4
“TIA” or “Trust Indenture Act” means the Trust
Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb), as in effect on the
date of this Indenture.
“Trustee” means the party named as such
in this Indenture until a successor replaces it and, thereafter, means the
successor.
“Trust Officer” shall mean, when used
with respect to the Trustee, any officer within the corporate trust department
of the Trustee, including any vice president, assistant vice president,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person’s knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
“U.S. GAAP” means generally accepted
accounting principles in the United States as have been approved by a
significant segment of the U.S. accounting profession, which are in effect
at the time of each application for purposes of determining compliance with
Articles III and IV. For the purposes of this Indenture, the term “consolidated”
with respect to any Person shall mean such Person consolidated with its
Subsidiaries.
“U.S. Government Securities” means
securities that are (a) direct obligations of the United States of America
for the timely payment of which its full faith and credit is pledged or (b)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which
is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act), as custodian with respect to any such U.S. Government
Securities or a specific payment of principal of or interest on any such U.S.
Government Securities held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Securities or the specific payment of principal
of or interest on the U.S. Government Securities evidenced by such depository
receipt.
SECTION
1.2. Other
Definitions.
Term
|
Defined
in Section
|
|
“Agent
Member”
|
2.1(d)
|
|
“Authenticating
Agent”
|
2.2
|
|
“Bankruptcy
Law”
|
6.1
|
|
“Company
Order”
|
2.2
|
|
“Corporate
Trust Office”
|
3.4
|
|
“Covenant
Defeasance”
|
8.3
|
5
Term | Defined in Section | |
“Custodian”
|
6.1
|
|
“Defaulted
Interest”
|
2.13
|
|
“Event
of Default”
|
6.1
|
|
“Exchange
Global Note”
|
2.1(a)
|
|
“Global
Securities”
|
2.1(a)
|
|
“IAI”
|
2.1(a)
|
|
“Institutional
Accredited Investor Global Note”
|
2.1(a)
|
|
“Legal
Defeasance”
|
8.2
|
|
“Paying
Agent”
|
2.3
|
|
“Private
Placement Legend”
|
2.1(c)
|
|
“Registrar”
|
2.3
|
|
“Regulation S
Global Note”
|
2.1(a)
|
|
“Regulation S
Legend”
|
2.1(c)
|
|
“Resale
Restriction Termination Date”
|
2.6
|
|
“Rule 144A
Global Note”
|
2.1(a)
|
|
“Special
Interest Payment Date”
|
2.13
|
|
“Special
Record Date”
|
2.13
|
|
“Successor
Company”
|
4.1
|
SECTION
1.3. Incorporation by
Reference of Trust Indenture Act. This Indenture is subject to
the mandatory provisions of the TIA which are incorporated by reference in and
made a part of this Indenture. The following TIA terms have the following
meanings:
“Commission” means the
SEC.
“indenture securities” means the
Securities.
“indenture security holder” means a
Securityholder.
“indenture to be qualified” means this
Indenture.
“indenture trustee” or “institutional
trustee” means the Trustee.
“obligor” on the indenture securities
means the Company and any other obligor on the indenture
securities.
All other TIA terms used in this
Indenture that are defined by the TIA, defined in the TIA by reference to
another statute or defined by SEC rule have the meanings assigned to them by
such definitions.
6
SECTION
1.4. Rules of
Construction. Unless the context otherwise requires: a term
has the meaning assigned to it; an accounting term not otherwise defined has the
meaning assigned to it in accordance with U.S. GAAP;
(1) “or” is not
exclusive;
(2) “including” means
including without limitation; words in the singular include the plural and words
in the plural include the singular; and (6) the principal amount of
any non interest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with U.S. GAAP.
ARTICLE
II
The
Securities
SECTION
2.1. Form, Dating and
Terms. (a) The Initial Securities and the
Additional Securities shall be in substantially the form set forth in Exhibit A
hereto, which is hereby incorporated by reference and made a part of this
Indenture, and the Exchange Securities shall be in substantially the form set
forth in Exhibit
B hereto, which is hereby incorporated by reference and made a part of
this Indenture.
Initial Securities and Additional
Securities offered and sold to QIBs in the United States of America in
reliance on Rule 144A will be issued initially in the form of a permanent
global Security, including appropriate legends as set forth in Section 2.1(c)
below (a “Rule 144A Global
Note”), deposited with the Trustee, as custodian for DTC, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. A
Rule 144A Global Note may be represented by more than one certificate, if
so required by DTC’s rules regarding the maximum principal amount to be
represented by a single certificate. The aggregate principal amount of a
Rule 144A Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Initial Securities and Additional
Securities offered, sold and resold outside the United States of America to
Persons other than U.S. Persons (as defined in Regulation S) in reliance on
Regulation S will be issued initially in the form of a permanent global
Security, including appropriate legends as set forth in Section 2.1(c)
below (the “Regulation S Global
Note”), deposited with the Trustee, as custodian for DTC, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. A
Regulation S Global Note may be represented by more than one certificate,
if so required by DTC’s rules regarding the maximum principal amount to be
represented by a single certificate. The aggregate principal amount of a
Regulation S Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Initial Securities or Additional
Securities resold after an initial resale thereof to QIBs in reliance on
Rule 144A or an initial resale thereof in reliance on Regulation S to
institutional “accredited investors” (as defined in Rules 501(a)(1), (2), (3) or
(7) under the Securities Act) who are not QIBs (“IAIs”) in the
United States of America in accordance with the procedure described herein
will be initially issued in the form of a permanent global Security (an “Institutional Accredited
Investor Global Note”) deposited with the Trustee, as custodian for DTC,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. An Institutional Accredited Investor Global Note may be represented by
more than one certificate, if so required by DTC’s rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate
principal amount of an Institutional Accredited Investor Global Note may from
time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for DTC or its nominee, as hereinafter
provided.
7
Exchange Securities exchanged for
interests in a Rule 144A Global Note, a Regulation S Global Note or an
Institutional Accredited Investor Note will be issued initially in the form of a
permanent global Security, deposited with the Trustee as hereinafter provided,
including the appropriate legend set forth in Section 2.1(c)
below (an “Exchange
Global Note”). An Exchange Global Note may be represented by more than
one certificate, if so required by DTC’s rules regarding the maximum principal
amount to be represented by a single certificate.
The Rule 144A Global Notes, the
Regulation S Global Notes, the Institutional Investor Global Notes and the
Exchange Global Notes are sometimes collectively herein referred to as the
“Global
Securities.”
Except as described in the succeeding
two sentences, the principal of and interest on the Securities shall be payable
at the office or agency of the Company maintained for such purpose in The City
of New York, or at such other office or agency of the Company as may be
maintained for such purpose pursuant to Section 2.3;
provided, however, that, at the option of the Company, each installment of
interest may be paid by check mailed to addresses of the Persons entitled
thereto as such addresses shall appear on the Note Register. Payments in respect
of Securities represented by a Global Security (including principal and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by DTC. Payments in respect of Securities represented by
Definitive Securities (including principal and interest) held by a Holder of at
least $1,000,000 aggregate principal amount of Securities represented by
Definitive Securities will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder
elects payment by wire transfer by giving written notice to the Trustee or the
Paying Agent to such effect designating such account no later than 15 days
immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).
The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage, in
addition to those set forth in Section 2.1(c)
below. The Company and the Trustee shall approve the forms of the Securities and
any notation, endorsement or legend on them. Each Security shall be dated the
date of its authentication. The terms of the Securities set forth in Exhibit A and Exhibit B are part of
the terms of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
be bound by such terms.
(b) Denominations. The
Securities shall be issuable only in fully registered form, without coupons, and
only in denominations of $1,000 and any integral multiple thereof.
8
(c) Restrictive Legends.
The following legends shall appear on the face of all Global Securities and
Definitive Securities issued under this Indenture unless specifically stated
otherwise in the applicable provisions of this Indenture:
(i) Each Rule 144A
Global Note and Institutional Accredited Investor Global Note shall bear the
following legend (the “Private Placement
Legend”) on the face thereof:
“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION.
NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS
ACCEPTANCE HEREOF, AGREES, ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION
DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES
ACT, PROVIDED THAT PRIOR TO SUCH TRANSFER, THE TRANSFEROR FURNISHES TO THE
COMPANY AND THE TRUSTEE A CERTIFICATE CONTAINING CERTAIN REPRESENTATIONS
RELATING TO THE PROPOSED TRANSFER BEING EFFECTED PURSUANT TO AND IN ACCORDANCE
WITH REGULATION S (THE FORM OF WHICH CERTIFICATE CAN BE OBTAINED FROM THE
TRUSTEE), (E) INSIDE THE UNITED STATES, TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT AND THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE COMPANY AND
THE TRUSTEE A CERTIFICATE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
CERTIFICATE CAN BE OBTAINED FROM THE TRUSTEE), OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.”
9
(ii) Each Regulation S
Global Note shall bear the following legend (the “Regulation S
Legend”) on the face thereof:
“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION.
NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES, ON ITS OWN BEHALF AND
ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),
ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO
A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, PROVIDED THAT PRIOR TO SUCH
TRANSFER, THE TRANSFEROR FURNISHES TO THE COMPANY AND THE TRUSTEE A CERTIFICATE
CONTAINING CERTAIN REPRESENTATIONS RELATING TO THE PROPOSED TRANSFER BEING
EFFECTED PURSUANT TO AND IN ACCORDANCE WITH REGULATION S (THE FORM OF WHICH
CERTIFICATE CAN BE OBTAINED FROM THE TRUSTEE), (E) INSIDE THE UNITED STATES, TO
AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING
THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF $250,000, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT AND THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE COMPANY AND THE TRUSTEE A CERTIFICATE CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH CERTIFICATE CAN BE OBTAINED FROM THE
TRUSTEE), OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.”
10
(iii) Each Regulation S
Global Note shall bear the following legend (the “Regulation S Legend”) on
the face thereof:
“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE
ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT
(“REGULATION S”), AND (2) BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION
TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S, PROVIDED THAT PRIOR TO SUCH
TRANSFER, THE TRANSFEROR FURNISHES TO THE COMPANY AND THE TRUSTEE A CERTIFICATE
CONTAINING CERTAIN REPRESENTATIONS RELATING TO THE PROPOSED TRANSFER BEING
EFFECTED PURSUANT TO AND IN ACCORDANCE WITH REGULATION S (THE FORM OF WHICH
CERTIFICATE CAN BE OBTAINED FROM THE TRUSTEE), (E) INSIDE THE UNITED STATES, TO
AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING
THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION INVOLVING A MINIMUM PRINCIPAL
AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT AND THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE COMPANY
AND THE TRUSTEE A CERTIFICATE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
CERTIFICATE CAN BE OBTAINED FROM THE TRUSTEE), OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM. THIS LEGEND WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND
INCLUDING THE LATER OF (A) THE DAY ON WHICH THE SECURITIES ARE OFFERED TO
PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S) AND (B) THE
DATE OF THE CLOSING OF THE ORIGINAL OFFERING. AS USED HEREIN, THE TERMS
“OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”
11
(iv) The Global Securities
shall bear the following legend on the face thereof:
“UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON
THE REVERSE HEREOF.”
(d) Book-Entry
Provisions. (i) This Section 2.1(d)
shall apply only to Global Securities deposited with the Trustee, as
custodian for DTC.
(ii) Each
Global Security initially shall (x) be registered in the name of DTC or the
nominee of DTC, (y) be delivered to the Trustee as custodian for DTC and (z)
bear legends as set forth in Section 2.1(c).
(iii) Members
of, or participants in, DTC (“Agent Members”) shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by DTC or by the Trustee as the custodian of DTC or under such
Global Security, and DTC may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by DTC or impair, as between DTC and its Agent Members,
the operation of customary practices of DTC governing the exercise of the rights
of a Holder of a beneficial interest in any Global Security.
(iv) In
connection with any transfer of a portion of the beneficial interest in a Global
Security pursuant to subsection (e) of this Section to beneficial owners
who are required to hold Definitive Securities, the Securities Custodian shall
reflect on its books and records the date and a decrease in the principal amount
of such Global Security in an amount equal to the principal amount of the
beneficial interest in the Global Security to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Definitive Securities of like tenor and amount.
(v) In
connection with the transfer of an entire Global Security to beneficial owners
pursuant to subsection (e) of this Section, such Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by DTC in exchange for its beneficial interest in such Global
Security, an equal aggregate principal amount of Definitive Securities of
authorized denominations.
(vi) The
registered Holder of a Global Security may grant proxies and otherwise authorize
any person, including Agent Members and persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
12
(e) Definitive
Securities. (i) Except as provided below, owners of
beneficial interests in Global Securities will not be entitled to receive
Definitive Securities. If required to do so pursuant to any
applicable law or regulation, beneficial owners may obtain Definitive
Securities in exchange for their beneficial interests in a Global
Security upon written request in accordance with DTC’s and the
Registrar’s procedures. In addition, Definitive Securities
shall be transferred to all beneficial owners in exchange for their
beneficial interests in a Global Security if (a) DTC notifies the
Company that it is unwilling or unable to continue as depositary for
such Global Security or DTC ceases to be a clearing agency registered under the
Exchange Act, at a time when DTC is required to be so registered in order to act
as depositary, and in each case a successor depositary is not
appointed by the Company within 90 days of such notice, (b) the Company executes
and delivers to the Trustee and Registrar an Officers’ Certificate stating that
such Global Security shall be so exchangeable or (c) an Event of Default has
occurred and is continuing and the Registrar has received a request from
DTC.
(ii) Any
Definitive Security delivered in exchange for an interest in a Global Security
pursuant to Section 2.1(d)(iv)
or (v) shall,
except as otherwise provided by Section 2.6(c),
bear the applicable legend regarding transfer restrictions applicable to the
Definitive Security set forth in Section 2.1(c).
(iii) In connection with the
exchange of a portion of a Definitive Security for a beneficial
interest in a Global Security, the Trustee shall cancel such Definitive
Security, and the Company shall execute, and the Trustee shall authenticate and
deliver, to the transferring Holder a new Definitive Security representing the
principal amount not so transferred.
SECTION
2.2. Execution and
Authentication. One Officer shall sign the Securities for the
Company by manual or facsimile signature. If an Officer whose signature is on a
Security no longer holds that office at the time the Trustee authenticates the
Security, the Security shall be valid nevertheless.
A Security shall not be valid until an
authorized signatory of the Trustee manually authenticates the Security. The
signature of the Trustee on a Security shall be conclusive evidence that such
Security has been duly and validly authenticated and issued under this
Indenture. A Security shall be dated the date of its
authentication.
13
At any time and from time to time after
the execution and delivery of this Indenture, the Trustee shall authenticate and
make available for delivery: Initial Securities for original issue on the Issue
Date initially in an aggregate principal amount of $400,000,000,
(2) if and when issued, the Additional Securities and (3) Exchange Securities
for issue pursuant to an Exchange and Registration Rights Agreement in exchange
for Initial Securities or Additional Securities of an equal principal amount, in
each case upon a written order of the Company signed by two Officers or by an
Officer and either an Assistant Treasurer or an Assistant Secretary of the
Company (the “Company
Order”). Such Company Order shall specify the amount of the Securities to
be authenticated and the date on which the original issue of such Securities is
to be authenticated and whether the Securities are to be Initial Securities,
Additional Securities, or Exchange Securities. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
limited to $400,000,000 principal amount of Initial Securities and such
additional principal amount of Additional Securities as may be authorized from
time to time by resolution adopted by the Company’s Board of Directors, except
for Securities authenticated and delivered upon registration or transfer of, or
in exchange for, or in lieu of, other Securities pursuant to Section 2.6,
Section 2.9,
Section 2.11,
Section 5.8,
Section 9.5 and
except for Exchange Securities. All Securities issued on the Issue Date and all
Additional Securities shall be identical in all respects other than issue dates,
the date from which interest accrues and any changes relating thereto.
Notwithstanding anything to the contrary contained in this Indenture, the
Holders of all Securities issued under this Indenture shall vote and consent
together on all matters as one lass, and the Holders of any Initial Securities,
Additional Securities or Exchange Securities will not have the right to vote or
consent as a separate class on any matter.
The Trustee may appoint an agent (the
“Authenticating
Agent”) reasonably acceptable to the Company to authenticate the
Securities. Unless limited by the terms of such appointment, any such
Authenticating Agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by the Authenticating Agent. An Authenticating Agent has the same
rights as a Paying Agent to deal with Holders or an Affiliate of the
Company.
In case the Company, pursuant to Article IV,
shall be consolidated or merged with or into any other Person or shall convey,
transfer, lease or otherwise dispose of its properties and assets substantially
as an entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the Person which shall have received a conveyance, transfer,
lease or other disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article IV, any
of the Securities authenticated or delivered prior to such consolidation,
merger, conveyance, transfer, lease or other disposition may, from time to time,
at the request of the successor Person, be exchanged for other Securities
executed in the name of the successor Person with such changes in phraseology
and form as may be appropriate, but otherwise in substance of like tenor as the
Securities surrendered for such exchange and of like principal amount; and the
Trustee, upon Company Order of the successor Person, shall authenticate and
deliver Securities as specified in such order for the purpose of such exchange.
If Securities shall at any time be authenticated and delivered in any new name
of a successor Person pursuant to this Section 2.2 in
exchange or substitution for or upon registration of transfer of any Securities,
such successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.
14
SECTION
2.3. Registrar and
Paying Agent. The Company shall maintain an office or agency
where Securities may be presented for registration of transfer or for exchange
(the “Registrar”) and an office or agency where Securities may be presented for
payment (the “Paying Agent”). The Company shall cause each of the Registrar and
the Paying Agent to maintain an office or agency in the Borough of Manhattan,
The City of New York. The Registrar shall keep a register of the Securities
and of their transfer and exchange (the “Note Register”). The Company may have
one or more co-registrars and one or more additional paying agents. The term
“Paying Agent” includes any additional paying agent.
The Company shall enter into an
appropriate agency agreement with any Registrar, Paying Agent or co-registrar
not a party to this Indenture, which shall incorporate the terms of the TIA. The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of each such
agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.7. The
Company or any of its Subsidiaries may act as Paying Agent, Registrar,
co-registrar or transfer agent.
The Company initially appoints DTC to
act as depository with respect to the Global Securities. The Trustee is
authorized to enter into a letter of representations with DTC in the form
provided to the Trustee by the Company and to act in accordance with such
letter.
The Company initially appoints the
Trustee as Registrar and Paying Agent for the Securities.
SECTION
2.4. Paying Agent To
Hold Money in Trust. By at least 10:00 a.m.
(New York City time) on the date on which any principal of or interest on
any Security is due and payable, the Company shall deposit with the Paying Agent
a sum sufficient to pay such principal or interest when due. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that such
Paying Agent shall hold in trust for the benefit of Securityholders or the
Trustee all money held by such Paying Agent for the payment of principal of or
interest on the Securities and shall notify the Trustee in writing of any
default by the Company in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent (other than the Trustee) to pay all money held by it to
the Trustee and to account for any funds disbursed by such Paying Agent. Upon
complying with this Section, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money delivered to the
Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect
to the Company, the Trustee shall serve as Paying Agent for the
Securities.
15
SECTION
2.5. Securityholder
Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Securityholders and shall otherwise comply with TIA (S) 312(a). If
the Trustee is not the Registrar, or to the extent otherwise required under the
TIA, the Company shall furnish to the Trustee, in writing at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders and
the Company shall otherwise comply with TIA (S)312(a).
SECTION
2.6. Transfer and
Exchange. (a) The following provisions shall apply
with respect to any proposed transfer of a beneficial interest in a
Rule 144A Global Note or in an Institutional Accredited Investor Global
Note or any Definitive Security issued in exchange therefor prior to the date
which is two years after the later of the date of its original issue and the
last date on which the Company or any Affiliate of the Company was the owner of
such Securities (or any predecessor thereto) (the “Resale Restriction
Termination Date”):
(i) a transfer thereof to a
QIB in reliance on Rule 144A shall be made upon the representation of the
transferee in the form as set forth on the reverse of the Security that it is
purchasing for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a “qualified
institutional buyer” within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it
has received such information regarding the Company as the proposed transferee
has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A;
(ii) a transfer thereof to
an IAI shall be made upon receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Section 2.7 from
the proposed transferee and, if requested by the Company or the Trustee, the
delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them; and
(iii) a transfer thereof to
a Non-U.S. Person in reliance on Regulation S shall be made upon receipt by
the Trustee or its agent of a certificate substantially in the form set forth in
Section 2.8 from
the proposed transferee and, if requested by the Company or the Trustee, the
delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them.
16
(b) The following provisions
shall apply with respect to any proposed transfer of a beneficial interest in a
Regulation S Global Note or any Definitive Securities issued in exchange
therefor prior to the expiration of the Restricted Period:
(i) a
transfer thereof to a QIB in reliance on Rule 144A shall be made upon the
representation of the transferee, in the form of assignment set forth on the
reverse of the Securities, that it is purchasing the Security for its own
account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the proposed transferee has requested
pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided by
Rule 144A;
(ii) a transfer thereof to
an IAI shall be made upon receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Section 2.7 from
the proposed transferee and, if requested by the Company or the
Trustee, the delivery of an opinion of counsel, certification and/or
other information satisfactory to each of them; and a transfer thereof to a
Non-U.S. Person in reliance on Regulation S shall be made upon
receipt by the Trustee or its agent of a certificate substantially in
the form set forth in Section 2.8 hereof from the proposed transferee and,
if requested by the Company or the Trustee, receipt by the Trustee or its agent
of an opinion of counsel, certification and/or other information satisfactory to
each of them.
After the expiration of the Restricted
Period, beneficial interests in the Regulation S Global Note or Definitive
Securities issued in exchange therefor may be transferred without requiring the
certification set forth in Section 2.7 or
Section 2.8 or
any additional certification.
(c) Restricted Securities
Legend. Upon the transfer, exchange or replacement of
Securities not bearing a Restricted Securities Legend, the Registrar shall
deliver Securities that do not bear a Restricted Securities Legend. Upon the
transfer, exchange or replacement of Securities bearing a Restricted Securities
Legend, the Registrar shall deliver only Securities that bear a Restricted
Securities Legend unless such Securities are Exchange Securities issued in a
Registered Exchange Offer or are otherwise sold under an effective registration
statement under the Securities Act or there is delivered to the Registrar an
Opinion of Counsel to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(d) The Registrar shall
retain copies of all letters, notices and other written communications received
pursuant to Section 2.1 or
this Section 2.6. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable prior written notice to the Registrar.
17
(e) Obligations with Respect to
Transfers and Exchanges of Securities. (i) To
permit registrations of transfers and exchanges, the Company shall,
subject to the other terms and conditions of this Article II,
execute, and the Trustee shall authenticate, Definitive Securities and Global
Securities at the Registrar’s or co-registrar’s request.
(ii) No service charge shall
be made to a Holder for any registration of transfer or exchange, but the
Company may require from a Holder payment of a sum sufficient to cover any
transfer tax, assessments or similar governmental charge payable in connection
therewith (other than any such transfer taxes, assessments or similar
governmental charges payable upon exchange or transfer pursuant to Section 9.5).
(iii) The Registrar or
co-registrar shall not be required (A) to issue, to register the transfer of or
to exchange any Security during a period beginning at the opening of 15 days
before the day of any selection of Securities for redemption and ending at the
close of business on the day of selection, (B) to register the transfer of or to
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (C) to register
the transfer of or to exchange a Security between a record date and the next
succeeding interest payment date.
(iv) Prior to the due
presentation for registration of transfer of any Security, the Company, the
Trustee, the Paying Agent, the Registrar or any co-registrar may deem and treat
the person in whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and interest on
such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and none of the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected by notice to the
contrary.
(v) Any Definitive Security
delivered in exchange for an interest in a Global Security pursuant
to Section 2.1(d)
shall, except as otherwise provided by Section 2.6(c),
bear the applicable legend regarding transfer restrictions applicable to the
Definitive Security set forth in Section 2.1(c).
(vi) All Securities issued
upon any transfer or exchange pursuant to the terms of this Indenture shall
evidence the same debt and shall be entitled to the same benefits under this
Indenture as the Securities surrendered upon such transfer or
exchange.
(f) No Obligation of the
Trustee. (i) The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in, DTC or other Person with respect to the accuracy
of the records of DTC or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Securities or with respect to the
delivery to any participant, member, beneficial owner or other Person (other
than DTC) of any notice (including any notice of redemption) or the payment of
any amount or delivery of any Securities (or other security or property) under
or with respect to such Securities. All notices and communications to be given
to the Holders and all payments to be made to Holders in respect of the
Securities shall be given or made only to or upon the order of the registered
Holders (which shall be DTC or its nominee in the case of a Global Security).
The rights of beneficial owners in any Global Security shall be exercised only
through DTC subject to the applicable rules and procedures of DTC. The Trustee
may rely and shall be fully protected in relying upon information furnished by
DTC with respect to its members, participants and any beneficial
owners.
18
(ii) The Trustee shall have
no obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security (including any
transfers between or among DTC participants, members or beneficial owners in any
Global Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by, the terms of this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
SECTION
2.7. Form of
Certificate to be Delivered in Connection with Transfers to Institutional
Accredited Investors.
[Date]
The Black
& Xxxxxx Corporation
c/o The
Bank of New York
000
Xxxxxxx Xxxxxx, 00X
New York,
New York 10286
Attention:
Corporate Trust Administration
Ladies
and Gentlemen:
This certificate is delivered to
request a transfer of $_________ principal amount of the 7.125% Senior Notes Due
2011 (the “Notes”) of The Black & Xxxxxx Corporation (the
“Company”).
19
Upon transfer, the Notes would be
registered in the name of the new beneficial owner as follows:
Name:
___________________________________
Address:
________________________________
Taxpayer ID Number:
_____________________
The undersigned represents and warrants
to you that:
1. We are an institutional
“accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended (the “Securities Act”))
purchasing for our own account or for the account of such an institutional
“accredited investor” at least $250,000 principal amount of the Notes, and we
are acquiring the Notes not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risk of our investment in the Notes and we invest
in or purchase securities similar to the Notes in the normal course of our
business. We and any accounts for which we are acting are each able
to bear the economic risk of our or its investment.
2. We understand that the
Notes have not been registered under the Securities Act and, unless so
registered, may not be sold except as permitted in the following sentence. We
agree on our own behalf and on behalf of any investor account for which we are
purchasing Notes to offer, sell or otherwise transfer such Notes prior to the
date which is two years after the later of the date of original issue and the
last date on which the Company or any affiliate of the Company was the owner of
such Notes (or any predecessor thereto) (the “Resale Restriction
Termination Date”) only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A
under the Securities Act (“Rule 144A”), to
a person we reasonably believe is a qualified institutional buyer under
Rule 144A (a “QIB”) that purchases
for its own account or for the account of a QIB and to whom notice is given that
the transfer is being made in reliance on Rule 144A, (d) pursuant to offers
and sales that occur outside the United States within the meaning of
Regulation S under the Securities Act, (e) to an institutional “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is purchasing for its own account or for the account of such
an institutional “accredited investor,” in each case in a minimum principal
amount of Notes of $250,000 or (f) pursuant to any other available exemption
from the registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the
Notes is proposed to be made pursuant to clause (e) above prior to the
Resale Restriction Termination Date, the transferor shall deliver a letter from
the transferee substantially
in the form of this letter to the Company and the Trustee, which shall provide,
among other things, that the transferee is an institutional “accredited
investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that is Acquiring such Notes for investment purposes and not for
distribution in violation of the Securities Act. Each purchaser acknowledges
that the Company and the Trustee reserve the right prior to any offer, sale or
other transfer prior to the Resale Restriction Termination Date of the Notes
pursuant to clauses (d), (e) or (f) above to require the delivery of an
opinion of counsel, certifications and/or other information satisfactory to the
Company and the Trustee.
TRANSFEREE:_____________________________
BY:______________________________________
20
SECTION
2.8. Form of
Certificate to be Delivered in Connection with Transfers Pursuant to
Regulation S.
[Date]
The Black
& Xxxxxx Corporation
c/o The
Bank of New York
000
Xxxxxxx Xxxxxx, 00X
New York,
New York 10286
Attention:
Corporate Trust Administration
Re: The
Black & Xxxxxx Corporation
7.125% Senior Notes Due 2011
(the “Securities”)
Ladies
and Gentlemen:
In connection with our proposed sale of
$________ aggregate principal amount of the Securities, we confirm that such
sale has been effected pursuant to and in accordance with Regulation S
under the United States Securities Act of 1933, as amended (the “Securities Act”),
and, accordingly, we represent that:
(a) the offer of the
Securities was not made to a person in the United States;
(b) either (i) at the time
the buy order was originated, the transferee was outside the United States
or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States or (ii) the transaction was
executed in, on or through the facilities of a designated off-shore securities
market and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the
United States;
21
(c) no directed selling
efforts have been made in the United States in contravention of the
requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S,
as applicable; and
(d) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act.
In addition, if the sale is made during
a distribution compliance period and the provisions of Rule 903(b)(2) or
Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that
such sale has been made in accordance with the applicable provisions of
Rule 903(b)(2) or Rule 904(b)(1), as the case may be.
You and the Company are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby. Terms used in
this certificate have the meanings set forth in Regulation S.
Very
truly yours,
[Name of
Transferor]
By:____________________________
Authorized Signature
SECTION
2.9. Mutilated, Destroyed, Lost or Stolen
Securities. If a mutilated Security is surrendered to the
Registrar or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the requirements of Section 8-405 of
the Uniform Commercial Code are met and the Holder satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced, and, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and make available for delivery, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security
under this Section, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
in connection therewith.
22
Every new Security issued pursuant to
this Section in lieu of any mutilated, destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of the
Company and any other obligor upon the Securities, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
SECTION
2.10. Outstanding
Securities. Securities outstanding at any time are all
Securities authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Security ceases to be outstanding in the event the Company or a
Subsidiary holds the Security, provided, however, that (i) for purposes of
determining which are outstanding for consent or voting purposes hereunder,
Securities shall cease to be outstanding in the event the Company or an
Affiliate of the Company holds the Security and (ii) in determining whether the
Trustee shall be protected in making a determination whether the Holders of the
requisite principal amount of outstanding Securities are present at a meeting of
Holders of Securities for quorum purposes or have consented to or voted in favor
of any request, demand, authorization, direction, notice, consent, waiver,
amendment or modification hereunder, or relying upon any such quorum, consent or
vote, only Securities which a Trust Officer of the Trustee actually knows to be
held by the Company or an Affiliate of the Company shall not be considered
outstanding.
If a Security is replaced pursuant to
Section 2.9, it
ceases to be outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent segregates and
holds in trust, in accordance with this Indenture, on a Redemption Date or
maturity date money sufficient to pay all principal and interest payable on that
date with respect to the Securities (or portions thereof) to be redeemed or
maturing, as the case may be, and the Paying Agent is not prohibited from paying
such money to the Securityholders on that date pursuant to the terms of this
Indenture, then on and after that date such Securities (or portions thereof)
cease to be outstanding and interest on them ceases to accrue.
SECTION
2.11. Temporary
Securities. Until Definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
Definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Definitive Securities. After
the preparation of Definitive Securities, the temporary Securities shall be
exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or agency maintained by the Company for that purpose
and such exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute,
and the Trustee shall authenticate and make available for delivery in exchange
therefor, one or more Definitive Securities representing an equal principal
amount of Securities. Until so exchanged, the Holder of temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as a
holder of Definitive Securities.
23
SECTION
2.12. Cancellation. The
Company at any time may deliver Securities to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel and return to the Company all Securities
surrendered for registration of transfer, exchange, payment or cancellation. The
Company may not issue new Securities to replace Securities it has paid or
delivered to the Trustee for cancellation for any reason other than in
connection with a transfer or exchange.
SECTION
2.13. Payment of
Interest; Defaulted Interest. Interest on any Security which
is payable, and is punctually paid or duly provided for, on any interest payment
date shall be paid to the Person in whose name such Security (or one or more
predecessor Securities) is registered at the close of business on the regular
record date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 2.3.
Any interest on any Security which is
payable, but is not paid when the same becomes due and payable and such
nonpayment continues for a period of 30 days shall forthwith cease to be payable
to the Holder on the regular record date by virtue of having been such Holder,
and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Securities (such defaulted interest
and interest thereon herein collectively called “Defaulted Interest”)
shall be paid by the Company, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company may elect to
make payment of any Defaulted Interest to the Persons in whose names
the Securities (or their respective predecessor Securities) are
registered at the close of business on a Special Record Date (as
defined below) for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Security
and the date (not less than 30 days after such notice) of the
proposed payment (the “Special Interest Payment
Date”), and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a record date (the “Special Record Date”)
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the Special Interest Payment Date and not
less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date, and in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date and
Special Interest Payment Date therefor to be given in the manner provided for in
Section 10.2,
not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date and Special
Interest Payment Date therefor having been so given, such Defaulted Interest
shall be paid on the Special Interest Payment Date to the Persons in whose names
the Securities (or their respective predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
24
(b) The Company may make
payment of any Defaulted Interest in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of
this Section, each Security delivered under this Indenture upon registration of,
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION
2.14. Computation of
Interest. Interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
SECTION
2.15. CUSIP and ISIN
Numbers. The Company in issuing the Securities may use “CUSIP”
and “ISIN” numbers (if then generally in use) and, if so, the Trustee shall use
“CUSIP” and “ISIN” numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such CUSIP or
ISIN numbers. The Company shall promptly notify the Trustee of any change in the
CUSIP and ISIN numbers.
ARTICLE
III
Covenants
SECTION
3.1. Payment of
Securities. The Company shall promptly pay the principal of
and interest on the Securities on the dates and in the manner provided in the
Securities and in this Indenture. Principal and interest shall be considered
paid on the date due if on such date the Trustee or the Paying Agent holds in
accordance with this Indenture money sufficient to pay all principal and
interest then due and the Trustee or the Paying Agent, as the case may be, is
not prohibited from paying such money to the Securityholders on that
date.
25
The Company shall pay interest on
overdue principal at the rate specified therefor in the Securities, and it shall
pay interest on overdue installments of interest at the same rate to the extent
lawful.
Notwithstanding anything to the
contrary contained in this Indenture, the Company may, to the extent it is
required to do so by law, deduct or withhold income or other similar taxes
imposed by the United States of America from principal or interest payments
hereunder.
SECTION
3.2. Limitation on
Liens. (a) The Company will not, and will not
permit any Subsidiary to, directly or indirectly, as security for any Debt,
mortgage, pledge or create or permit to exist any lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property,
whether such shares of stock, indebtedness or other obligations of a Subsidiary
or Principal Property are owned at the date of the Indenture or hereafter
acquired, unless the Company secures or causes to be secured any outstanding
Securities equally and ratably with all Debt secured by such mortgage, pledge or
lien, so long as that Debt shall be secured; provided, however, that the
foregoing limitation shall not apply in the case of (i) the creation of any
mortgage, pledge or other lien on any shares of stock, indebtedness or other
obligations of a Subsidiary or a Principal Property hereafter acquired
(including acquisitions by way of merger or consolidation) by the Company or a
Subsidiary contemporaneously with such acquisition, or within 120 days
thereafter, to secure or provide for the payment or financing of any part of the
purchase price thereof, or the assumption of any mortgage, pledge or other lien
upon any shares of stock, indebtedness or other obligations of a Subsidiary or a
Principal Property hereafter acquired existing at the time of such acquisition,
or the acquisition of any shares of stock, indebtedness or other obligations of
a Subsidiary or a Principal Property subject to any mortgage, pledge or other
lien without the assumption thereof, provided that any mortgage, pledge or lien
referred to in this clause (i) shall attach only to the shares of stock,
indebtedness or other obligations of a Subsidiary or a Principal Property so
acquired and fixed improvements thereon, (ii) any mortgage, pledge or other lien
on any shares of stock, indebtedness or other obligations of a Subsidiary or a
Principal Property existing on the date that the Securities are first issued,
(iii) any mortgage, pledge or other lien on any shares of stock, indebtedness or
other obligations of a Subsidiary or a Principal Property in favor of the
Company or any Subsidiary, (iv) any mortgage, pledge or other lien on a
Principal Property being constructed or improved securing Debt incurred to
finance the construction or improvements, (v) any mortgage, pledge or other lien
on shares of stock, indebtedness or other obligations of a Subsidiary or a
Principal Property incurred in connection with the issuance by a state or
political subdivision thereof of any securities the interest on which is exempt
from Federal income taxes by virtue of Section 103 of the
United States Internal Revenue Code of 1986, as amended, or any other laws
and regulations in effect at the time of such issuance and (vi) any renewal of
or substitution for any mortgage, pledge or other lien permitted by any of the
preceding clauses (i) through (v); provided, in the case of a mortgage,
pledge or other lien permitted under clause (i), (ii) or (iv), the Debt
secured is not increased nor the lien extended to any additional
assets.
26
(b) Notwithstanding the
foregoing paragraph (a), the Company or any Subsidiary may create or assume
liens in addition to those permitted by the foregoing paragraph (a), and
renew, extend or replace such liens; provided that at the time of such creation,
assumption, renewal, extension or replacement, and after giving effect thereto,
Exempted Debt does not exceed 10% of Consolidated Net Tangible
Assets.
SECTION
3.3. Limitation on
Sale Leaseback Transactions. (a) The Company will
not, and will not permit, any Subsidiary to, sell or transfer, directly or
indirectly, except to the Company or a Subsidiary, a Principal Property as an
entirety, or any substantial portion thereof, with the intention of taking back
a lease of all or part of such property except a lease for a period of three
years or less at the end of which it is intended that the use of such property
by the lessee will be discontinued; provided that, notwithstanding the
foregoing, the Company or any Subsidiary may sell a Principal Property and lease
it back for a longer period (i) if the Company or such Subsidiary would be
entitled, pursuant to Section 3.2, to
create a mortgage on the property to be leased securing Debt in an amount equal
to the Attributable Debt with respect to the sale and lease-back transaction
without equally and ratably securing the outstanding Securities or (ii) if (A)
the Company promptly informs the Trustee of such transactions, (B) the net
proceeds of such transaction are at least equal to the fair value (as determined
by a Board Resolution) of such property and (C) the Company causes an amount
equal to the net proceeds of the sale to be applied to the retirement (whether
by redemption, cancellation after open-market purchases, or otherwise), within
120 days after receipt of such proceeds, of Funded Debt having an outstanding
principal amount equal to the net proceeds.
(b) Notwithstanding the
foregoing paragraph (a), the Company or any Subsidiary may enter into sale
and lease-back transactions in addition to those permitted by the foregoing
paragraph (a), and without any obligation to retire any outstanding Funded
Debt; provided that a the time of entering into such sale and lease-back
transactions and after giving effect thereto, Exempted Debt does not exceed 10%
of Consolidated Net Tangible Assets.
SECTION
3.4. Maintenance of
Office or Agency. The Company shall maintain in The City of
New York an office or agency where the Securities may be presented or
surrendered for payment, where, if applicable, the Securities may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served.
The principal corporate trust office (the “Corporate Trust
Office”) of the Trustee located in The City of New York shall be
such office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes. The
Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
27
The Company may also from time to time
designate one or more other offices or agencies (in or outside of The City of
New York) where the Securities may be presented or surrendered for any or
all such purposes and may from time to time rescind any such designation;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in The
City of New York for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and any change in
the location of any such other office or agency.
SECTION
3.5. Compliance
Certificate. The Company shall deliver to the Trustee within
120 days after the end of each Fiscal Year of the Company an Officers’
Certificate stating that in the course of the performance by the signers of
their duties as Officers of the Company they would normally have knowledge of
any Default or Event of Default and whether or not the signers know of any
Default or Event of Default that occurred during such period. If they do, the
certificate shall describe the Default or Event of Default, its status and what
action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with TIA (S) 314(a)(4).
SECTION
3.6. Statement by
Officers as to Default. The Company shall deliver to the
Trustee within 10 days after the Company becomes aware of the occurrence of any
Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers’ Certificate setting forth the
details of such Default or Event of Default and the action which the Company
proposes to take with respect thereto.
SECTION
3.7. Further
Instruments and Acts. Upon reasonable request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE
IV
Successor
Company
SECTION
4.1. Merger, Consolidation or Sale of
All or Substantially All Assets of the Company. The Company
shall not consolidate with or merge into, or transfer, directly or indirectly,
all or substantially all of its assets to another corporation or other Person
unless (1) the resulting, surviving or transferee corporation or other Person
assumes by supplemental indenture all the obligations of the Company under the
Securities and this Indenture, (2) immediately after giving effect to such
transaction, no Event of Default, and no circumstances that, after notice or
lapse of time or both, would become an Event of Default, shall have happened and
be continuing, and (3) the Company shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply with
this Indenture, and thereafter all such obligations of the Company shall
terminate.
28
ARTICLE
V
Redemption
of Securities
SECTION
5.1. Optional
Redemption. The Securities may be redeemed, at the option of
the Company, at any time in whole, or from time to time in part, subject to the
conditions and at the redemption prices specified in the form of Securities set
forth in Exhibit
A and Exhibit
B hereto, which are hereby incorporated by reference and made a part of
this Indenture, together with accrued and unpaid interest to the Redemption
Date.
SECTION
5.2. Applicability of
Article. Redemption of Securities at the election of the
Company or otherwise, as permitted by any provision of this Indenture, shall be
made in accordance with such provision and this Article.
SECTION
5.3. Election to
Redeem; Notice to Trustee. The election of the Company to
redeem any Securities pursuant to Section 5.1
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, upon not later than the earlier of
the date that is 30 days prior to the Redemption Date fixed by the Company or
the date on which notice is given to the Holders (except as provided in Section 5.5 or
unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 5.4.
SECTION
5.4. Selection by
Trustee of Securities to Be Redeemed. If less than all the
Securities are to be redeemed at the option of the Company at any time pursuant
to Section 5.1, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee from the outstanding Securities not
previously called for redemption, in compliance with the requirements of the
principal national securities exchange, if any, on which such Securities are
listed, or, if such Securities are not so listed, then on a pro rata basis, by
lot or by such other method as the Trustee shall deem fair and appropriate (and
in such manner as complies with applicable legal requirements) and which may
provide for the selection for redemption of portions of the principal of the
Securities; provided, however, that (i) Securities and portions thereof that the
Trustee selects shall be in amounts of $1,000 or an integral multiple of $1,000
and (ii) no such partial redemption shall reduce the portion of the principal
amount of a Security not redeemed to less than $1,000.
The Trustee shall promptly notify the
Company in writing of the Securities selected for redemption and, in the case of
any Securities selected for partial redemption, the principal amount thereof to
be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to redemption of
Securities shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
29
SECTION
5.5. Notice of
Redemption. Notice of redemption shall be given in the manner
provided for in Section 10.2 not
less than 30 nor more than 60 days prior to the Redemption Date, to each Holder
of Securities to be redeemed. The Trustee shall give notice of
redemption in the Company’s name and at the Company’s expense; provided,
however, that the Company shall deliver to the Trustee, at least 15 days prior
to the date on which such notice is to be given, an Officers’ Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the following items.
All notices of redemption shall
state:
(1) the Redemption
Date,
(2) the redemption price and
the amount of accrued interest to the Redemption Date payable as
provided in Section 5.7, if any,
(3) if less than all
outstanding Securities are to be redeemed, the identification of the
particular Securities (or portion thereof) to be redeemed, as well as
the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding after such partial
redemption,
(4) in case any Security is
to be redeemed in part only, the notice which relates to such
Security shall state that on and after the Redemption Date, upon
surrender of such Security, the Holder will receive, without charge, a new
Security or Securities of authorized denominations for the principal
amount thereof remaining unredeemed,
(5) that on the Redemption
Date the redemption price (and accrued interest, if any, to the
Redemption Date payable as provided in Section 5.7)
will become due and payable upon each such Security, or the portion thereof, to
be redeemed, and, unless the Company defaults in making the redemption payment,
that interest on Securities called for redemption (or the portion thereof) will
cease to accrue on and after said date,
(6) the place or places
where such Securities are to be surrendered for payment of the redemption price
and accrued interest, if any,
(7) the name and address of
the Paying Agent,
(8) that Securities called
for redemption must be surrendered to the Paying Agent to collect the redemption
price,
30
(9) the CUSIP and ISIN
numbers, and that no representation is made as to the accuracy or correctness of
the CUSIP and ISIN numbers, if any, listed in such notice or printed on the
Securities, and
(10) the paragraph of
the Securities pursuant to which the Securities are to be redeemed.
SECTION
5.6. Deposit of
Redemption Price. Prior to any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in Section 2.4) an
amount of money sufficient to pay the redemption price of, and accrued interest
on, all the Securities which are to be redeemed on that date.
SECTION
5.7. Securities
Payable on Redemption Date. Notice of redemption having been
given as aforesaid, the Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the redemption price therein specified (together
with accrued interest, if any, to the Redemption Date), and from and after such
date (unless the Company shall default in the payment of the redemption price
and accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the redemption price, together
with accrued interest, if any, to the Redemption Date (subject to the rights of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
If any Security called for redemption
shall not be so paid upon surrender thereof for redemption, the principal shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Securities.
SECTION
5.8. Securities
Redeemed in Part. Any Security which is to be redeemed only in
part pursuant to the provisions of this Article V shall
be surrendered at the office or agency of the Company maintained for such
purpose pursuant to Section 3.4
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Security at
the expense of the Company, a new Security or Securities, of any authorized
denomination as requested by such Holder, in an aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security
so surrendered, provided that each such new Security will be in a principal
amount of $1,000 or integral multiple thereof.
31
ARTICLE
VI
Defaults
and Remedies
SECTION
6.1. Events of
Default. An “Event of Default” occurs if:
(1) the Company defaults in
any payment of interest or additional interest (as required by the Exchange and
Registration Rights Agreement) on any Security when the same becomes due and
payable, and such default continues for a period of 30 days;
(2) the Company defaults in
the payment of the principal on any Security when the same becomes
due and payable at its Stated Maturity, upon optional redemption, upon
declaration or otherwise;
(3) the Company defaults in
the performance of or breaches any covenant or agreement in this Indenture or
under the Securities, other than those referred to in (1) or (2) above, and such
default continues for 30 days after written notice (which notice must specify
the default, demand that it be remedied and state that the notice is a “Notice
of Default”) from the Trustee or the Holders of at least 25% in principal amount
of the outstanding Securities;
(4) (A) the Company or any
of its Subsidiaries fails to pay, in accordance with its terms and when payable,
any of the principal, interest or additional amounts, if any, on any Debt
(including the Securities, other than the Securities, if any, with respect to
which the failure to pay principal, interest or additional interest is also an
Event of Default under Sections 6.1(1), 6.1(2) or both) having, in the
aggregate, a then outstanding principal amount in excess of $20,000,000, at the
later of final maturity or the expiration of any applicable grace period or (B)
the maturity of Debt in an aggregate principal amount in excess of $20,000,000
is accelerated, if such acceleration results from a default under the instrument
giving rise to or securing such Debt;
(5) the Company pursuant to
or within the meaning of any Bankruptcy Law (as defined below):
(A) commences a voluntary
case;
(B) consents to the entry of
an order for relief against it in an involuntary case;
(C) consents to the
appointment of a Custodian (as defined below) of it or for any substantial part
of its property; or
(D) makes a general
assignment for the benefit of its creditors; or
(6) a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law
that:
(A) is for relief against
the Company in an involuntary case;
(B) appoints a Custodian of
the Company for all or substantially all of the Company’s property;
or
32
(C) orders
the winding up or liquidation of the Company; and in each case the order or
decree remains unstayed and in effect for 60 days.
The foregoing will constitute Events of
Default whatever the reason for any such Event of Default and whether it is
voluntary or involuntary or is effected by
operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or Regulation of any administrative or governmental body.
The term “Bankruptcy Law” means
Title 11, United States
Code, or any similar Federal or state law for the relief of
debtors. The term “Custodian” means any
receiver, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
SECTION
6.2. Acceleration. If
an Event of Default described in clauses (1), (2), (3) and (4) of Section 6.1
occurs and is continuing, the Trustee, or the Holders of at least 25% in
outstanding principal amount of the Securities, by notice to the Company, may,
and the Trustee at the written request of such Holders shall, declare the
principal of and accrued and unpaid interest, if any, on all the Securities to
be due and payable. Upon such a declaration, such principal and accrued and
unpaid interest shall be immediately due and payable. If an Event of
Default described in clauses (5) and (6) above occurs and is continuing,
the principal of and accrued and unpaid interest on all the Securities will
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holders.
SECTION
6.3. Other
Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of
or interest on the Securities or to enforce the performance of any provision of
the Securities or this Indenture.
The Trustee may maintain a proceeding
even if it does not possess any of the Securities or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
SECTION
6.4. Waiver of Past
Defaults. The Holders of a majority in principal amount of the
outstanding Securities by notice to the Trustee may (a) waive, by their consent
(including, without limitation consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Securities), an existing Default or
Event of Default and its consequences except a Default or Event of Default in
the payment of the principal of or interest on a Security or (ii) a Default or
Event of Default in respect of a provision that under Section 9.2
cannot be amended without the consent of each Securityholder affected and (b)
rescind any such acceleration with respect to the Securities and its
consequences if (1) rescission would not conflict with any judgment or decree of
a court of competent jurisdiction and (2) all existing Events of Default, other
than the nonpayment of the principal of and interest on the Securities that have
become due solely by such declaration of acceleration, have been cured or
waived. When a Default or Event of Default is waived, it is deemed cured, but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any consequent right.
33
SECTION
6.5. Control by
Majority. The Holders of a majority in principal amount of the
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.1 and
Section 7.2,
that the Trustee determines is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
SECTION
6.6. Limitation on
Suits. Subject to Section 6.7, a
Securityholder may not pursue any remedy with respect to this Indenture or the
Securities unless:
(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 outstanding principal amount of the Securities make a request to the
Trustee to pursue the remedy;
(3) such Holder or Holders
offer to the Trustee reasonable security or indemnity satisfactory to the
Trustee against any loss, liability or expense;
(4) the Trustee does not
comply with the request within 60 days after receipt of the request and the
offer of security or indemnity; and
(5) the Holders of a
majority in principal amount of the Securities do not give the Trustee a
direction that, in the opinion of the Trustee, is inconsistent with such request
during such 60-day period.
A Securityholder may not use this
Indenture to prejudice the rights of another Securityholder or to obtain a
preference or priority over another Securityholder.
SECTION
6.7. Rights of Holders
to Receive Payment. Notwithstanding any other provision of
this Indenture (including, without limitation, Section 6.6),
the right of any Holder to receive payment of principal of or interest on the
Securities held by such Holder, on or after the respective due dates expressed
in the Securities, or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION
6.8. Collection Suit
by Trustee. If an Event of Default specified in Section 6.1(1)
or (2) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount then due
and owing (together with interest on any unpaid interest to the extent lawful)
and the amounts provided for in Section 7.7.
34
SECTION
6.9. Trustee May File
Proofs of Claim. The Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Securityholders allowed in any judicial proceedings relative to the Company,
its Subsidiaries or its or their respective creditors or properties and may vote
on behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section 7.7.
SECTION
6.10. Priorities. If
the Trustee collects any money or property pursuant to this Article VI, it
shall pay out the money or property in the following order:
FIRST: to the Trustee for
amounts due under Section 7.7;
SECOND: to Securityholders
for amounts due and unpaid on the Securities for principal and
interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for
principal and interest, respectively; and
THIRD: to the
Company.
The Trustee may fix a record date and
payment date for any payment to Securityholders pursuant to this
Section. At least 15 days before such record date, the Company shall
mail to each Securityholder and the Trustee a notice that states the record
date, the payment date and amount to be paid.
SECTION
6.11. Undertaking for
Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees, 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 does not apply to a suit by the Trustee, a suit by
the Company, a suit by a Holder pursuant to Section 6.7 or a
suit by Holders of more than 10% in outstanding principal amount of the
Securities.
35
ARTICLE
VII
Trustee
SECTION
7.1. Duties of
Trustee. (a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise the rights and powers vested in it
by this Indenture and use the same degree of care and skill in its exercise as a
prudent Person would
exercise or use under the circumstances in the conduct of such Person’s own
affairs; provided that if an Event of Default occurs and is continuing, the
Trustee will be under no obligation to exercise any of the rights or powers
under this Indenture at the request or direction of any of the Holders unless
such Holders have offered to the Trustee indemnity or security reasonably
satisfactory to it against any loss, liability or expense (other than as
provided in clause (c) below).
(b) Except during the
continuance of an Event of Default:
(1) the Trustee undertakes
to perform such duties and only such duties as are specifically set
forth in this Indenture and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such certificates or
opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such certificates and
opinions to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be
relieved from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) this paragraph does
not limit the effect of paragraph (b) of this Section;
(2) the Trustee shall not be
liable for any error of judgment made in good faith by a Trust
Officer unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be
liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.5.
(d) Every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section.
36
(e) The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.
(f) Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
(g) No provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its
duties
hereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(h) Every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this
Section and to the provisions of the TIA.
(i) Unless otherwise
specifically provided in this Indenture, any demand, request, direction or
notice from the Company shall be sufficient if signed by an
Officer.
(j) The Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders unless such Holders
shall have offered to the Trustee reasonable security or indemnity satisfactory
to it against any loss, liability or expense (including reasonable attorneys’
fees and expenses) that might be incurred by it in compliance with such request
or direction.
SECTION
7.2. Rights of
Trustee. Subject to Section 7.1,
(a) The Trustee may conclusively rely on any document (whether in its
original or facsimile form) reasonably believed by it to be genuine and to have
been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts
or refrains from acting, it may require an Officers’ Certificate and/or an
Opinion of Counsel. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on an Officers’ Certificate or Opinion
of Counsel.
(c) The Trustee may act
through its attorneys and agents and shall not be responsible for the misconduct
or negligence of any agent appointed with due care.
(d) The Trustee shall not be
liable for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers, provided, however, that the
Trustee’s conduct does not constitute willful misconduct or
negligence.
37
(e) The Trustee may consult
with counsel of its selection, and the advice or opinion of counsel with respect
to legal matters relating to this Indenture and the Securities shall be full and
complete authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(f) The Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion, may
make further inquiry or investigation into such facts or matters as it may see
fit, personally or by agent or attorney, at the sole cost of the Company and
with the Company’s
cooperation
and shall incur no liability or additional liability of any kind by reason of
such inquiry or investigation.
(g) The rights, privileges,
protections, immunities and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent,
custodian and other Person employed to act hereunder.
(h) The Trustee may request
that the Company deliver an Officers’ Certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers’ Certificate may be signed by
any person authorized to sign an Officers’ Certificate, including any person
specified as authorized in any such certificate previously delivered and not
superseded.
SECTION
7.3. Individual Rights
of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee. Any Paying Agent, Registrar, co-registrar or co-paying agent may do
the same with like rights. However, the Trustee must comply with Section 7.10 and
Section 7.11. In
addition, the Trustee shall be permitted to engage in transactions with the
Company; provided, however, that if the Trustee acquires any conflicting
interest the Trustee must (i) eliminate such conflict within 90 days of
acquiring such conflicting interest, (ii) apply to the SEC for permission to
continue acting as Trustee or (iii) resign.
SECTION
7.4. Trustee’s
Disclaimer. The Trustee shall not be responsible for and makes
no representation as to the validity or adequacy of this Indenture or the
Securities, shall not be accountable for the Company’s use of the proceeds from
the Securities and shall not be responsible for any statement of the Company in
this Indenture or in any document issued in connection with the sale of the
Securities or in the Securities other than the Trustee’s certificate of
authentication.
SECTION
7.5. Notice of
Defaults. If a Default or Event of Default occurs and is
continuing and if a Trust Officer has actual knowledge thereof, the Trustee
shall mail to each Securityholder at the address set forth in the Note Register
notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment of principal of or
interest on any Security (including payments pursuant to the optional redemption
provisions of such Security), the Trustee may withhold the notice if and so long
as its Board of Directors, a committee of its Board of Directors or a committee
of its Trust Officers in good faith determines that withholding the notice is in
the interests of Securityholders.
38
SECTION
7.6. Reports by
Trustee to Holders. As promptly as practicable after each May
15 beginning with the May 15 following the date of this Indenture, and in any
event prior to July 15 in each year, the Trustee shall mail to each
Securityholder a brief report dated as of such May 15 that complies with TIA (S)
313(a). The Trustee also
shall comply with XXX (S) 313(b). The
Trustee shall also transmit by mail all reports required by XXX (S)
313(c).A copy of each report at the time of
its mailing to Securityholders shall be filed with the SEC and each stock
exchange (if any) on which the Securities are listed. The Company
agrees to notify promptly the Trustee whenever the Securities become listed on
any stock exchange and of any delisting thereof.
SECTION
7.7. Compensation and
Indemnity. The Company shall pay to the Trustee from time to
time such compensation for its acceptance of this Indenture and services
hereunder as the Company and the Trustee shall from time to time agree in
writing. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred or made
by it, including costs of collection, costs of preparing and reviewing reports,
certificates and other documents, costs of preparation and mailing of notices to
Securityholders and reasonable costs of counsel retained by Trustee in
connection with the delivery of an Opinion of Counsel or otherwise, in addition
to the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee’s agents,
counsel, accountants and experts. The Company shall indemnify the Trustee
against any and all loss, liability, damages, claims or expense (including
reasonable attorneys’ fees and expenses) incurred by it without negligence or
bad faith on its part in connection with the acceptance or administration of
this trust and the performance of its duties hereunder, including the costs and
expenses of enforcing this Indenture (including this Section 7.7) and
of defending itself against any claims (whether asserted by any Securityholder,
the Company or otherwise). The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall provide reasonable cooperation in
the defense. The Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel, provided that the Company shall not be
required to pay such fees and expenses if it assumes the Trustee’s defense, and,
in the reasonable judgment of counsel to the Trustee, there is no conflict of
interest between the Company and the Trustee in connection with such
defense. The Company need not reimburse any expense or indemnify
against any loss, liability or expense incurred by the Trustee through the
Trustee’s own willful misconduct, negligence or bad faith.
To secure the Company’s payment
obligations in this Section, the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee, other than
money or property held in trust to pay principal of and interest on particular
Securities. The Trustee’s right to receive payment of any amounts due
under this Section 7.7
shall not be subordinate to any other liability or Debt of the
Company.
39
The Company’s payment obligations
pursuant to this Section shall survive the discharge of this
Indenture. When the Trustee incurs expenses after the occurrence of a
Default specified in Section 6.1(5)
or (6) with
respect to the Company, the expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8. Replacement of
Trustee. The Trustee may resign at any time by so notifying
the Company. The Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee and may appoint a successor
Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to
comply with Section 7.10;
(2) the Trustee is adjudged
bankrupt or insolvent;
(3) a receiver or other
public officer takes charge of the Trustee or its property;
or
(4) the Trustee otherwise
becomes incapable of acting.
If the Trustee resigns or is removed by
the Company or by the Holders of a majority in principal amount of the
Securities and such Holders do not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of the Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the
Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a
written acceptance of its appointment to the retiring Trustee and to the
Company. Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. The successor
Trustee shall mail a notice of its succession to Securityholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.7.
If a successor Xxxxxxx does not take
office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of 10% in principal amount of the
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with
Section 7.10,
any Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
40
Notwithstanding
the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.7
shall continue for the benefit of the retiring Trustee.
SECTION
7.9. Successor Trustee
by Xxxxxx. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust
business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
In case at the time such successor or
successors by merger, conversion or consolidation to the Trustee shall succeed
to the trusts created by this Indenture, any of
the
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
trustee, and deliver such Securities so authenticated; and in case at that time
any of the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; provided that the
right to adopt the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name of any predecessor Trustee shall only apply
to its successor or successors by merger, consolidation or
conversion.
SECTION
7.10. Eligibility;
Disqualification. The Trustee shall at all times satisfy the
requirements of TIA (S) 310(a). The Trustee shall have a combined
capital and surplus of at least $50 million as set forth in its most recent
published annual report of condition. The Trustee shall comply with
TIA (S) 310(b); provided, however, that there shall be excluded from the
operation of TIA (S) 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA (S) 310(b)(1) are met.
SECTION
7.11. Preferential
Collection of Claims Against Company. The Trustee shall comply
with TIA (S) 311(a), excluding any creditor relationship listed in TIA (S)
311(b). A Trustee who has resigned or been removed shall be subject to TIA (S)
311(a) to the extent indicated.
ARTICLE
VIII
Satisfaction
and Discharge of Indenture
SECTION
8.1. Option To Effect
Legal Defeasance or Covenant Defeasance. The Company may, at
the option of its Board of Directors evidenced by a Board Resolution, at any
time, elect to have either Section 8.2 or 8.3 be applied to all outstanding
Securities upon compliance with the conditions set forth below in this
Article VIII.
SECTION
8.2. Legal Defeasance
and Discharge. Upon the Company’s exercise under
Section 8.1 of the option applicable to this Section 8.2, the Company
shall be deemed to have been discharged from its obligations under this
Indenture with respect to all outstanding Securities on the date the conditions
set forth below are satisfied (hereinafter, “Legal Defeasance”). For
this purpose, such Legal Defeasance means that the Company shall be deemed to
have paid and discharged all the obligations relating to the outstanding
Securities and such Securities shall thereafter be deemed to be “outstanding”
only for the purposes of Section 8.6 and Section 8.8, and to have
satisfied all of its other obligations under such Securities and this Indenture
and cured all then existing Events of Default with respect to such Securities
(and the Trustee, on demand of and at the expense of the Company shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Securities to receive payments in respect of the
principal and accrued interest on such Securities when such payments are due or
on the Redemption Date solely out of the trust created pursuant to this
Indenture; (b) the rights, powers, trusts, duties and immunities of the Trustee,
and the Company’s obligations in connection therewith; and (c) this
Article VIII and the obligations set forth in Section 8.6
hereof.
41
SECTION
8.3. Covenant
Defeasance. Upon the Company’s exercise under Section 8.1
of the option applicable to this Section 8.3, the Company shall be released
from any obligations under the covenants contained in Sections 3.2 and 3.3
hereof with respect to the outstanding Securities on and after the date the
conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”),
and the Securities shall thereafter be deemed not “outstanding” for the purposes
of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes). For this purpose, such Covenant Defeasance means that,
with respect to the outstanding Securities, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or Event of Default with
respect to the Securities under Section 6.1(3), nor shall any event
referred to in Sections 6.1(4) thereafter constitute a Default or Event of
Default with respect to the Securities, but, except as specified above, the
remainder of this Indenture and such Securities shall be unaffected
thereby.
SECTION
8.4. Conditions to
Legal or Covenant Defeasance. The following shall be the
conditions to the application of either Section 8.2 or Section 8.3 to
the outstanding Securities:
(i) in the case of Legal
Defeasance, either (A) all Securities theretofore authenticated and delivered
under the Indenture must have been delivered to the Trustee for cancellation or
(B) the Company must irrevocably deposit, or cause to be irrevocably deposited,
with the Trustee, in trust, for the benefit of the Holders, cash in U.S.
dollars, non-callable U.S. Government Securities or a combination thereof in
such amounts (and, in the case of U.S. Government Securities, together with the
predetermined and certain income to accrue thereon, without consideration of any
reinvestment thereof) as will be sufficient to pay the principal of and accrued
interest due on the outstanding Securities on the Stated Maturity date or on the
applicable Redemption Date, as the case may be, of such principal of and accrued
interest on the outstanding Securities;
42
(ii) in
the case of Covenant Defeasance, the Company must irrevocably deposit, or cause
to be irrevocably deposited, with the Trustee, in trust, for the benefit of the
Holders, cash in U.S. dollars, non-callable U.S. Government Securities or a
combination thereof in such amounts (and, in the case of U.S. Government
Securities, together with the predetermined and certain income to accrue
thereon, without consideration of any reinvestment thereof) as will be
sufficient to pay the principal of and accrued interest due on the outstanding
Securities on the Stated Maturity date or on the applicable Redemption Date, as
the case may be, of such principal of and accrued interest on the outstanding
Securities;
(iii) in the case of Legal
Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming
that, subject to customary assumptions and exclusions, the Company has received
from, or there has been published by, the U.S. Internal Revenue Service a ruling
or (2) since the Issue Date, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, subject to customary assumptions and
exclusions, the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not
occurred;
(iv) in the case of Covenant
Defeasance, the Company shall have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions, the Holders will not recognize income,
gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to such tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(v) such Covenant Defeasance
shall not result in a breach or violation of, or constitute a default under any
material agreement or instrument to which the Company is a party or by which the
Company is bound;
43
(vi) in
the case of Legal Defeasance, 91 days shall have passed during which no Event of
Default under Section 6.1(5) or 6.1(6) has occurred;
(vii) the Company shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the defeasance and
discharge of the Securities and this Indenture as contemplated by
this Article VIII have been complied with; and
(viii) the Company shall
have delivered to the Trustee a certificate from a nationally recognized firm of
independent accountants expressing their opinion that the payments of principal
and accrued interest when due and
without reinvestment on the deposited U.S. Government Securities plus any
deposited money without investment will provide cash at such times and in such
amounts as will be sufficient to pay principal and accrued interest when due on
all the Securities to maturity.
SECTION
8.5. Satisfaction and
Discharge of Indenture. This Indenture will be discharged with
respect of the Securities and will cease to be of further effect as to all
Securities issued thereunder, when either (a) all such Securities theretofore
authenticated and delivered (except lost, stolen or destroyed Securities which
have been replaced or paid and Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company) have
been delivered to the Trustee for cancellation; or (b)(i) all such Securities
not theretofore delivered to the Trustee for cancellation have become due and
payable by reason of the mailing of a notice of redemption or otherwise or will
become due and payable within one year and the Company has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust an amount of
money in U.S. dollars or U.S. Government Securities or any combination thereof
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation for principal and accrued
and unpaid interest to the date of maturity or redemption; no Default with
respect to the Securities shall have occurred within 91 days of such deposit or
shall occur as a result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to
which the Company is a party or by which it is bound; (iii) the Company has paid
or caused to be paid all sums payable by it with respect to the Securities under
this Indenture; and (iv) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward the payment
of such Securities at maturity or the Redemption Date, as the case may be. In
addition, with respect to clause (b) of the preceding sentence, the Company
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, stating that all conditions precedent specified herein relating to the
satisfaction and discharge of this Indenture have been complied
with.
SECTION
8.6. Survival of
Certain Obligations. Notwithstanding the satisfaction and
discharge of this Indenture referred to in Section 8.1, 8.2, 8.3, 8.4 or
8.5, the respective obligations of the Company and the Trustee under Sections
2.2, 2.3, 2.4, 2.5, 2.6, 2.9, 2.10, 2.11, 2.12, 3.4, 3.5, 3.6, 3.7, 6.7, 7.7,
7.8 and this Article VIII shall survive until the Securities are no longer
outstanding. Nothing contained in this Article VIII shall
abrogate any of the obligations or duties of the Trustee under this
Indenture.
44
SECTION
8.7. Acknowledgment of
Discharge by Trustee. Subject to Section 8.10, after (i) the
conditions of Section 8.4 or 8.5 have been satisfied, (ii) the Company has
paid or caused to be paid all other sums payable hereunder by the Company and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent referred to in
clause (i) above relating to the satisfaction and discharge of this
Indenture have been complied with, the Trustee upon written request shall
acknowledge in writing the discharge of all of the
Company’s obligations under this Indenture except for those surviving
obligations specified in this Article VIII.
SECTION
8.8. Application of
Trust Moneys. All cash in U.S. dollars and U.S. Government
Securities deposited with the Trustee pursuant to Section 8.4 or 8.5 shall
be held in trust and applied by the Trustee, in accordance with the provisions
of this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders, of all sums due and to become due thereon for
principal and accrued interest but such money need not be segregated from other
funds except to the extent required by law. The Holder of any Security replaced
pursuant to Section 2.9 shall not be entitled to any such payment and shall
look only to the Company for any payment which such Holder may be entitled to
collect. In connection with the satisfaction and discharge of this Indenture or
the defeasance of certain obligations under this Indenture, the Company may
direct the Trustee to (i) invest any money received by the Trustee in the
U.S. Government Securities deposited in trust in additional U.S. Government
Securities, and (ii) deliver or pay to the Company from time to time upon the
request of the Company any money or U.S. Government Securities held by it,
which, as evidenced by a certificate from a nationally recognized firm of
independent accountants, are in excess of the amount thereof which would then
have been required to be deposited for the purpose for which such money or
U.S. Government Securities were deposited or received.
The Company shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Government Securities deposited pursuant to Section 8.4 or 8.5 or the
principal or interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders.
SECTION
8.9. Repayment to the
Company; Unclaimed Money. The Trustee and any Paying Agent
shall promptly pay or return to the Company upon request any cash or U.S.
Government Securities held by them at any time that are not required for the
payment of the principal and interest on the Securities for which cash or U.S.
Government Securities have been deposited pursuant to Section 8.4 or
8.5.
SECTION
8.10. Reinstatement. If
the Trustee or Paying Agent is unable to apply any cash or U.S. Government
Securities in accordance with Section 8.2, 8.3, 8.4 or 8.5 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2, 8.3, 8.4 or 8.5 until such time as the Trustee or Paying Agent
is permitted to apply all such cash or U.S. Government Securities in
accordance with Section 8.2, 8.3, 8.4 or 8.5; provided, however, that if
the Company has made any payment of principal of or interest on any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Securities held by the Trustee or Paying
Agent.
45
ARTICLE
IX
Amendments
SECTION
9.1. Without Consent
of Holders. The Company and the Trustee may amend this
Indenture or the Securities without notice to or consent of any
Securityholder:
(1) to cure any ambiguity,
omission, defect or inconsistency;
(2) to comply with Article IV in
respect of the assumption by a Successor Company of an obligation of
the Company under this Indenture;
(3) to add guarantees with
respect to the Securities;
(4) to secure the
Securities;
(5) to add to the covenants
of the Company for the benefit of the Holders or to surrender any
right or power herein conferred upon the Company;
(6) to make any change that
does not adversely affect the rights of any Securityholder; or
(7) to comply with any
requirement of the SEC in connection with the qualification of this Indenture
under the TIA.
After an amendment under this
Section becomes effective, the Company shall mail to Securityholders a
notice briefly describing such amendment. The failure to give such
notice to all Securityholders at the address set forth in the Note Register, or
any defect therein, shall not impair or affect the validity of an amendment
under this Section 9.1.
46
SECTION
9.2. With Consent of
Holders. The Company and the Trustee may amend this Indenture
or the Securities without notice to any Securityholder but with the written
consent of the Holders of at least a majority in principal amount of the
Securities then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for,
Securities). However, without the consent of each Securityholder affected, an
amendment may not:
(1) reduce the amount of
Securities whose Holders must consent to an amendment;
(2) reduce the stated rate
of or extend the stated time for payment of interest on any
Security;
(3) reduce the principal of
or extend the Stated Maturity of any Security;
(4) reduce
the premium payable upon the redemption of any Security or change the time at
which any Security may or shall be redeemed as described above under Article V or any
similar provision, whether through an amendment to or waiver of Article V, a
definition or otherwise;
(5) make any Security
payable in money other than that stated in the Security;
(6) impair the right of any
Holder to receive payment of principal of and interest on such Xxxxxx’s
Securities on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder’s Securities;
or
(7) make any change to the
amendment provisions which require each Holder’s consent or the
waiver provisions in Section 6.4 which require each Holder’s
consent.
It shall not be necessary for the
consent of the Holders under this Section 9.2 to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2
becomes effective, the Company shall mail to Securityholders a notice briefly
describing such amendment. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.2.
SECTION
9.3. Compliance with
Trust Indenture Act. Every amendment to this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION
9.4. Revocation and
Effect of Consents and Waivers. A consent to an amendment or a
waiver by a Holder of a Security shall bind the Holder and every subsequent
Holder of that Security or portion of the Security that evidences the same debt
as the consenting Holder’s Security, even if notation of the consent or waiver
is not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent or waiver as to such Holder’s Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective or otherwise in accordance with any
related solicitation documents. After an amendment or waiver becomes effective,
it shall bind every Securityholder. An amendment or waiver shall become
effective upon receipt by the Trustee of the requisite number of written
consents under Section 9.1 or
Section 9.2 as
applicable.
47
The Company may, but shall not be
obligated to, fix a record date for the purpose of determining the
Securityholders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this
Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders
after such record date. No such consent or action shall be valid or
effective if given or taken more than 120 days after such record
date.
SECTION
9.5. Notation on or
Exchange of Securities. If an amendment changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
regarding the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Failure to make the appropriate notation or to issue a new
Security shall not affect the validity of such amendment.
SECTION
9.6. Trustee To Sign
Amendments. The Trustee shall sign any amendment authorized
pursuant to this Article IX if
the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may but need not
sign it. In signing such amendment the Trustee shall be entitled to
receive indemnity reasonably satisfactory to it and to receive, and (subject to
Section 7.1 and
Section 7.2)
shall be fully protected in relying upon, an Officers’ Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture and that such amendment is the legal, valid and binding
obligation of the Company, enforceable against it in accordance with its terms,
subject to customary exceptions, and complies with the provisions hereof
(including Section 9.3).
ARTICLE
X
Miscellaneous
SECTION
10.1. Trust Indenture
Act Controls. If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included
in this Indenture by the TIA, the provision required by the TIA shall
control.
48
SECTION
10.2. Notices. Any
notice or communication shall be in writing and delivered in person or mailed by
first-class mail addressed as follows:
if to the Company:
The Black
& Xxxxxx Corporation
000 Xxxx
Xxxxx Xxxx
Towson,
Maryland 21286
Attention:
Treasurer
with
copies to:
The Black
& Xxxxxx Corporation
000 Xxxx
Xxxxx Xxxx
Towson,
Maryland 21286
Attention:
General Counsel
Xxxxx
& Xxxxxxxxxxx, P.C.
00 Xxxxx
Xxxxxx
Baltimore,
Maryland 21202
Attention:
X.X. Xxxxxxxx Xxxx, Esq.
if to the
Trustee:
The Bank
of New York
000
Xxxxxxx Xxxxxx, 00X
New York,
New York 10286
Attention:
Corporate Trust Administration
The Company or the Trustee by notice to
the other may designate additional or different addresses for subsequent notices
or communications.
Any notice or communication mailed to a
registered Securityholder shall be mailed by first-class mail to the
Securityholder at the Securityholder’s address as it appears on the registration
books of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice or
communication to a Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION
10.3. Communication by
Holders with other Holders. Securityholders may communicate
pursuant to TIA (S) 312(b) with other Securityholders with respect to their
rights under this Indenture or the Securities. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA (S)
312(c).
SECTION
10.4. Certificate and
Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take or refrain from taking any
action under this Indenture, the Company shall furnish to the Trustee: an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with; and an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
49
SECTION
10.5. Statements
Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a covenant or condition provided for in
this Indenture shall include:
(1) a statement that the
individual making such certificate or opinion has read such covenant or
condition;
(2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;
(3) a statement that, in the
opinion of such individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and a statement as to whether or
not, in the opinion of such individual, such covenant or condition has been
complied with.
In giving such Opinion of Counsel,
counsel may rely as to factual matters on an Officers’ Certificate or on
certificates of public officials.
SECTION
10.6. When Securities
Disregarded. In determining whether the Holders of the
required principal amount of Securities have concurred in any direction, waiver
or consent, Securities owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which the Trustee knows are so owned shall be so disregarded. Also, subject to
the foregoing, only Securities outstanding at the time shall be considered in
any such determination.
SECTION
10.7. Rules by
Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by, or a meeting of, Securityholders. The Registrar
and the Paying Agent may make reasonable rules for their functions.
SECTION
10.8. Legal
Holidays. A “Legal Holiday” is a Saturday, a Sunday or other
day on which commercial banking institutions are authorized or required to be
closed in New York City. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
SECTION
10.9. GOVERNING
LAW. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
50
SECTION
10.10. No Recourse
Against Others. An incorporator, director, officer, employee,
Affiliate or stockholder of the Company, solely by reason of this status, shall
not have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each
Securityholder shall waive and release all such liability. The waiver
and release shall be part of the consideration for the issue of the
Securities.
SECTION
10.11. Successors. All
agreements of the Company in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION
10.12. Multiple
Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION
10.13. Variable
Provisions. The Company initially appoints the Trustee as
Paying Agent and Registrar and custodian with respect to any Global
Securities.
SECTION
10.14. Table of
Contents; Headings. The table of contents, cross-reference
sheet and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.
IN WITNESS WHEREOF, the parties have
caused this Indenture to be duly executed as of the date first written
above.
THE
BLACK & XXXXXX CORPORATION,
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|||
|
By:
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/s/ XXXXXXX X. XXXXXX | |
Name: Xxxxxxx X. Xxxxxx | |||
Title:
Senior Vice President and
Chief
Financial
Officer
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|||
THE
BANK OF NEW YORK, as Trustee,
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By:
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/s/ XXXXXXXX XXXXXX | |
Name: Xxxxxxxx Xxxxxx | |||
Title:
Vice President
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51
EXHIBIT
A
[FORM OF
FACE OF INITIAL SECURITY AND ADDITIONAL SECURITY]
[Applicable
Restricted Securities Legend]
[Depository
Legend, if applicable]
No.
___ Principal Amount
$_____________, as revised by the Schedule of Increases and Decreases in Global
Security attached hereto
CUSIP
NO. ______________
|
ISIN:
______________
|
7.125%
Senior Notes Due 2011
The Black & Xxxxxx Corporation, a
Maryland corporation, promises to pay to __________, or registered assigns, the
principal sum of _______________ Dollars, as revised by the Schedule of
Increases and Decreases in Global Security attached hereto, on June 1,
2011.
Interest Payment Dates: June
1 and December 1
Record Dates: May 15 and
November 15
Additional provisions of this Security
are set forth on the other side of this Security.
THE
BLACK & XXXXXX CORPORATION,
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|||
|
By:
|
||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
|
|
The
Bank of New York,
as
Trustee, certifies that this
is
one of the Securities referred to in the Indenture.
|
|
By
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|||
|
Authorized
Signatory
|
Date: June
__, 2001
|
A-1
[FORM OF
REVERSE SIDE OF INITIAL SECURITY AND ADDITIONAL SECURITY]
7.125%
Senior Note Due 2011
1. Interest
The Black & Xxxxxx Corporation, a
Maryland corporation (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the “Company”), promises
to pay interest on the principal amount of this Security at the rate per annum
shown above.
The Company will pay interest
semiannually on June 1 and December 1 of each year commencing December 1,
2001. Interest on the Securities will accrue from the most recent
date to which interest has been paid on the Securities or, if no interest has
been paid, from June 5, 2001. The Company shall pay interest on
overdue principal or premium, if any (plus interest on such interest to the
extent lawful), at the rate borne by the Securities to the extent
lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
If (i) the Exchange Offer Registration
Statement is not filed with the Commission on or prior to 90 days after the
Issue Date or the Shelf Registration Statement is not filed with the Commission
on or before the Shelf Filing Date, the Exchange Offer Registration Statement is
not declared effective within 180 days after the Issue Date or the Shelf
Registration Statement is not declared effective within 90 days after the Shelf
Filing Date, (iii) the Registered Exchange Offer is not consummated on or prior
to 210 days after the Issue Date, or (iv) the Shelf Registration Statement is
filed and declared effective within 90 days after the Shelf Filing Date but
shall thereafter cease to be effective (at any time that the Company is
obligated to maintain the effectiveness thereof) without being succeeded within
30 days by an additional Registration Statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a “Registration
Default”), the annual interest rate borne by this Security shall be increased by
0.25% from the rate shown above during the period of one or more such
Registration Defaults until (i) the applicable Registration Statement is filed,
(ii) the Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, is declared effective, (iii) the Registered
Exchange Offer is consummated, or (iv) the Shelf Registration Statement again
becomes effective, as the case may be. Following the cure of all
Registration Defaults, the accrual of additional interest will
cease. Capitalized terms used in this paragraph, but not otherwise
defined herein shall have the meanings ascribed to such terms in the Exchange
and Registration Rights Agreement, dated as of June 5, 2001 (the “Registration
Rights Agreement”), among the Company, Banc of America Securities LLC,
X.X. Xxxxxx Securities Inc. and the other Initial Purchasers named
therein. The Holder of this Security is entitled to the benefits of
the Registration Rights Agreement.
A-2
2. Method of
Payment
By at least 10:00 a.m. (New York
City time) on the date on which any principal of or interest on any Security is
due and payable, the Company shall deposit with the Trustee or the Paying Agent
money sufficient to pay such principal, premium, if any, and/or interest when
due. The Company will pay interest (except Defaulted Interest) to the
Persons who are registered Holders of Securities at the close of business on May
15 or November 15 next preceding the interest payment date even if Securities
are cancelled, repurchased or redeemed after the record date and on or before
the interest payment date. Holders must surrender Securities to a Paying Agent
to collect principal payments. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. Except as described in the succeeding two
sentences, the principal of, premium, if any, and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose pursuant to Section 2.3 of
the Indenture; provided, however, that, at the option of the Company, each
installment of interest may be paid by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Note Register. Payments
in respect of Securities represented by a Global Security (including principal,
premium, if any, and interest) will be made by wire transfer of immediately
available funds to the accounts specified by The Depository Trust Company.
Payments in respect of Securities represented by Definitive Securities
(including principal, premium, if any, and interest) held by a Holder of at
least $1,000,000 aggregate principal amount of Securities represented by
Definitive Securities will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder
elects payment by wire transfer by giving written notice to the Trustee or the
Paying Agent to such effect designating such account no later than 15 days
immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).
3. Paying Agent and
Registrar
Initially, The Bank of New York
(the “Trustee”), will act as Trustee, Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice to any Securityholder. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under
an Indenture dated as of June 5, 2001 (as it may be amended or supplemented from
time to time in accordance with the terms thereof, the “Indenture”), between the
Company and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. (S)(S)
77aaa-77bbbb) as in effect on the date of the Indenture (the
“Act”). Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture and
the Act for a statement of those terms. In the event of any
inconsistency between the terms of this Security and the terms of the Indenture,
the terms of the Indenture shall control.
A-3
The Securities are general unsecured
senior obligations of the Company, including (a) $400,000,000 aggregate
principal amount of Securities being offered on the Issue Date (subject to Section 2.9 of
the Indenture) and any Additional Securities. This Security is one of
the Securities referred to in the Indenture. The Initial Securities,
Additional Securities and Exchange Securities will be treated as a single class
of securities under the Indenture.
The Indenture imposes certain
limitations on, among other things: the incurrence of certain liens and
sale-leaseback transactions by the Company or its Subsidiaries and
consolidations, mergers and sales of assets of the Company.
5. Redemption
The Securities will be redeemable, at
the option of the Company, at any time in whole, or from time to time in part,
upon not less than 30 and not more than 60 days’ prior notice mailed to each
Holder of Securities to be so redeemed at such Holder’s registered address, at a
redemption price equal to the greater of
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●
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100%
of the principal amount of the Securities to be redeemed;
and
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●
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the
sum of the present values of the remaining scheduled payments
thereon consisting of principal and interest, exclusive of
interest accrued to the date of redemption, at the rate in effect on the
date of calculation of the redemption price, discounted to the date of
redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the applicable Treasury Rate (as defined below),
plus 25 basis points;
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plus, in
each case, accrued interest to the date of redemption.
For purposes of determining the
optional redemption price, the following definitions are
applicable:
“Comparable
Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining
term of the Securities to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Securities.
“Comparable Treasury Price” means, with
respect to any redemption date,
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●
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the
average of four Reference Treasury Dealer Quotations obtained by
the Trustee for that redemption date, after excluding the
highest and lowest of such reference Treasury Dealer
Quotations; or . if the Trustee is unable to obtain
at least four such Reference Treasury Dealer Quotations, the
average of all Reference Treasury Dealer Quotations obtained by the
Trustee.
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A-4
“Independent Investment Banker” means
one of the Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
“Reference Treasury Dealer” means each
of Banc of America Securities LLC, X.X. Xxxxxx Securities Inc. (or their
successors) and two other primary U.S. Government Securities dealers in
New York City appointed by the Trustee in consultation with the Company
(each, a “Primary Treasury Dealer”); provided, however, that if any of the
foregoing shall cease to be a Primary Treasury Dealer, the Company shall
substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations”
means, with respect to each Reference Treasury Dealer and any Redemption Date,
an average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue for the Securities, expressed in each case as a
percentage of its principal amount, quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
business day preceding such Redemption Date.
“Treasury Rate” means, with respect to
any redemption date for the Securities,
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●
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the
yield, under the heading which represents the average for
the immediately preceding week, appearing in the most recently
published statistical release designated “H.15(519)” or any
successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury
securities adjusted to constant maturity under the
caption “Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue (if no maturity
is within three months before or after the applicable maturity
date, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall
be determined and the Treasury Rate shall be interpolated or
extrapolated from such yields on a straight line basis,
rounding to the nearest month); or
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●
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if
such release (or any successor release) is not published during the
week preceding the calculation date or does not contain such
yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such redemption
date.
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The Treasury Rate shall be calculated
on the third business day preceding the redemption date.
A-5
In the case of any partial redemption,
selection of the Securities for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed or, if the Securities are not so
listed, then on a pro rata basis, by lot or by such other method as
the
Trustee shall deem to be fair and appropriate (and in such
manner as complies with applicable legal requirements) provided that (i)
Securities and portions thereof that the Trustee selects shall be in amounts of
$1,000 or an integral multiple of $1,000 and (ii) no such partial redemption
shall reduce the portion of the principal amount of a Security not redeemed to
less than $1,000. If any Security is to be redeemed in part only, the
notice of redemption relating to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in principal
amount equal to the unredeemed portion thereof will be issued in the name of the
Holder thereof upon cancellation of the original Security. On and
after the redemption date, interest will cease to accrue on Securities or
portions thereof called for redemption as long as the Company has deposited with
the Trustee or with a Paying Agent (or, if applicable, segregated and held in
trust) money sufficient to pay the redemption price of, and accrued interest on,
all the Securities which are to be redeemed on such date.6. Denominations; Transfer;
Exchange
The Securities are in registered form
without coupons in denominations of principal amount of $1,000 and whole
multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not (A) issue, register the transfer of
or exchange any Security during a period beginning at the opening of 15 days
before the day of any selection of Securities for redemption and ending at the
close of business on the day of selection, (B) register the transfer of or to
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (C) register the
transfer of or to exchange a Security between a record date and the next
succeeding interest payment date.
7. Persons Deemed
Owners
The registered Holder of this Security
will be treated as the owner of it for all purposes.
8. Unclaimed
Money
If money for the payment of principal
or interest remains unclaimed for two years, the Trustee or Paying Agent shall
pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders
entitled to the money must look only to the Company and not to the Trustee for
payment.
9. Defeasance
Subject to certain conditions set forth
in the Indenture, the Company at any time may terminate some or all of its
obligations under the Securities and the Indenture if the Company deposits with
the Trustee money or U.S. Government Securities for the payment of
principal, premium, if any, and interest on the Securities to redemption or
maturity, as the case may be.
A-6
10. Amendment,
Waiver
Subject to certain exceptions set forth
in the Indenture, (i) the Indenture or the Securities may be amended with the
written consent of the Holders of at least a majority in principal amount of the
then outstanding Securities and (ii) any default (other than with respect to
nonpayment or in respect of a provision that cannot be amended without the
written consent of each Securityholder affected) or noncompliance with any
provision may be waived with the written consent of the Holders of a majority in
principal amount of the then outstanding Securities. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article IV of
the Indenture, or to add guarantees with respect to the Securities, or to secure
the Securities, or to add additional covenants of the Company, or surrender
rights and powers conferred on the Company, or to comply with any request of the
SEC in connection with qualifying the Indenture under the Act, or to make any
change that does not adversely affect the rights of any
Securityholder.
11. Defaults and
Remedies
Under the Indenture, Events of Default
include (i) default in any payment of interest or additional interest on any
Security when due, continued for 30 days; (ii) default in the payment of
principal or premium, if any, on any Security when due at its Stated Maturity,
upon optional redemption, upon declaration or otherwise; (iii) default by the
Company in the performance of or breaches by the Company of any covenant or
agreement in the Indenture or under the Securities, other than those referred to
in (i) or (ii), where such default continues for 60 days after written notice
from the Trustee or the Holders of at least 25% in principal amount of the
outstanding Securities; (iv) (a) failure by the Company or any of its
Subsidiaries to pay, in accordance with its terms and when payable, any of the
principal, premium, if any, interest or additional amounts, if any, on any Debt
(including the Securities, other than the Securities, , if any, with respect to
which the failure to pay principal, premium, if any, interest or additional
interest is also an Event of Default under clauses (i), (ii) or both)
having, in the aggregate, a then outstanding principal amount in excess of
$20,000,000, at the later of final maturity or the expiration of any applicable
grace period or (b) acceleration of the maturity of Debt in an aggregate
principal amount in excess of $20,000,000, if that acceleration results from a
default under the instrument giving rise to or securing such Debt; or (v)
certain events of bankruptcy, insolvency or reorganization of the
Company.
If an Event of Default described in
clauses (i), (ii), (iii) and (iv) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in outstanding principal
amount of the Securities by notice to the Company and the Trustee, may, and the
Trustee at the request of such Holders shall, declare the principal of, premium,
if any, and accrued and unpaid interest, if any, on all the Securities to be due
and payable. Upon such a declaration, such principal, premium and
accrued and unpaid interest shall be immediately due and payable. If
an Event of Default described in clause (v) above occurs and is continuing,
the principal of, premium, if any, and accrued and unpaid interest on all the
Securities will become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders.
A-7
Securityholders may not enforce the
Indenture or the Securities except as provided in the Indenture. The
Trustee may refuse to enforce the Indenture or the Securities unless it receives
reasonable indemnity or security satisfactory to it. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing Default or
Event of Default (except a Default or Event of Default in payment of principal
of, premium, if any, or interest on any Security) if it determines in good faith
that withholding notice is in the interests of Securityholders.
12. Trustee Dealings with the
Company
Subject to certain limitations set
forth in the Indenture, the Trustee under the Indenture, in its individual or
any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Company or its
Affiliates and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee.
13. No Recourse Against
Others
An incorporator, director, officer,
employee, Affiliate or stockholder, of the Company, solely by reason of this
status, shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such
liability. The waiver and release are part of the consideration for
the issue of the Securities.
14. Authentication
This Security shall not be valid until
an authorized signatory of the Trustee (or an authenticating agent acting on its
behalf) manually signs the certificate of authentication on the other side of
this Security.
15. Abbreviations
Customary abbreviations may be used in
the name of a Securityholder or an assignee, such as TEN COM (=tenants in
common), TEN ENT (=tenants by the entirety), JT TEN (=joint tenants with rights
of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A
(=Uniform Gift to Minors Act).
A-8
16. CUSIP
Numbers
Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures the
Company has caused CUSIP numbers to be printed on the Securities and has
directed the Trustee to use CUSIP numbers in notices of redemption as a
convenience to Securityholders. No representation is made as to the
accuracy of such numbers either as printed on the Securities or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
17. Governing
Law
This Security shall be governed by, and
construed in accordance with, the laws of the State of
New York.
The Company will furnish to any
Securityholder upon written request and without charge to the Securityholder a
copy of the Indenture which has in it the text of this
Security. Requests may be made to:
The Black
& Xxxxxx Corporation
000 Xxxx
Xxxxx Xxxx
Towson,
Maryland 21286
Attention: Treasurer
A-9
ASSIGNMENT
FORM
To assign this Security, fill in the
form below:
I or we
assign and transfer this Security to
____________________________________________
(Print or
type assignee’s name, address and zip code)
____________________________________________
(Insert assignee’s soc. sec. or tax
I.D. No.)
and
irrevocably appoint ___________ agent to transfer this Security on the books of
the Company. The agent may substitute another to act for
him.
Date:
|
Your
Signature:
|
Signature
Guarantee:
|
|
(Signature
must be guaranteed)
|
Sign
exactly as your name appears on the
other side of this Security.
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The
signature(s) should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program), pursuant to SEC
Rule 17Ad-15.
In
connection with any transfer or exchange of any of the Securities evidenced by
this certificate occurring prior to the date that is two years after the later
of the date of original issuance of such Securities and the last date, if any,
on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE
BOX BELOW:
[_] 1
|
acquired
for the undersigned’s own account, without transfer;
or
|
[_] 2
|
transferred
to the Company; or
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[_] 3
|
transferred
pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended (the “Securities Act”);
or
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[_] 4
|
transferred
pursuant to an effective registration statement under the Securities
Act; or
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[_] 5
|
transferred
pursuant to and in compliance with Regulation S under the
Securities Act; or
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A-10
[_] 6
|
transferred
to an institutional “accredited investor” (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act),
that has furnished to the Trustee a signed letter containing
certain representations and agreements (the form of which letter appears
as Section 2.7
of the Indenture); or
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[_] 7
|
transferred
pursuant to another available exemption from the registration requirements
of the Securities Act of 1933.
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Unless
one of the boxes is checked, the Trustee will refuse to register any of the
Securities evidenced by this certificate in the name of any person other than
the registered Holder thereof; provided, however, that if box (5), (6) or is
checked, the Trustee or the Company may require, prior to registering any such
transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
Signature
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||
Signature
Guarantee:
|
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(Signature
must be guaranteed)
|
Signature
|
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The
signature(s) should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program), pursuant to SEC
Rule 17Ad-15.
TO BE
COMPLETED BY PURCHASER IF (1) OR (3) ABOVE IS CHECKED.
The
undersigned represents and warrants that it is purchasing this Security for its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act of 1933, as
amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order
to claim the exemption from registration provided by
Rule 144A.
Dated: |
A-11
[TO BE
ATTACHED TO GLOBAL SECURITIES]
SCHEDULE
OF INCREASES OR DECREASES IN GLOBAL SECURITY
The
following increases or decreases in this Global Security have been
made:
Date
of
Exchange
|
Amount
of decrease in
Principal
Amount of this
Global
Security
|
Amount
of increase in
Principal
Amount of
this
Global Security
|
Principal
Amount of
this
Global Security
following
such
decrease
or increase
|
Signature
of
authorized
signatory
of
Trustee or
Securities
Custodian
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A-12
EXHIBIT B
[FORM OF
FACE OF EXCHANGE SECURITY]
[Depository
Legend, if applicable]
No.
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Principal
Amount $____________,
as
revised by the Schedule of
Increases
and Decreases in Global
Security
attached hereto
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CUSIP
NO. _____________
ISIN:
_____________
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7.125%
Senior Notes Due 2011
The Black & Xxxxxx Corporation, a
Maryland corporation, promises to pay to ____________, or registered assigns,
the principal sum of _______________ Dollars, as revised by the Schedule of
Increases and Decreases in Global Security attached hereto, on June 1,
2011.
Interest Payment Dates: June
1 and December 1
Record Dates: May 15 and
November 15
Additional provisions of this Security
are set forth on the other side of this Security.
THE
BLACK & XXXXXX CORPORATION
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By:
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TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
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The
Bank of New York,
as
Trustee, certifies that this
is
one of the Securities referred to in the Indenture.
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By
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Authorized
Signatory
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Date: June
__, 2001
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B-1
[FORM OF
REVERSE SIDE OF EXCHANGE SECURITY]
7.125%
Senior Note Due 2011
1.
Interest
The Black
& Xxxxxx Corporation, a Maryland corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the “Company”), promises to pay interest on the principal amount of this
Security at the rate per annum shown above.
The
Company will pay interest semiannually on June 1 and December 1 of each year
commencing December 1, 2001. Interest on the Securities will accrue
from the most recent date to which interest has been paid on the Securities or,
if no interest has been paid, from June 5, 2001. The Company shall
pay interest on overdue principal or premium, if any (plus interest on such
interest to the extent lawful), at the rate borne by the Securities to the
extent lawful. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
2.
Method of
Payment
By at least 10:00 a.m. (New York
City time) on the date on which any principal of or interest on any Security is
due and payable, the Company shall deposit with the Trustee or the Paying Agent
money sufficient to pay such principal, premium, if any, and/or interest when
due. The Company will pay interest (except Defaulted Interest) to the
Persons who are registered Holders of Securities at the close of business on the
May 15 or November 15 next preceding the interest payment date even if
Securities are cancelled, repurchased or redeemed after the record date and on
or before the interest payment date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private
debts. Except as described in the succeeding two sentences, the
principal of, premium, if any, and interest on the Securities shall be payable
at the office or agency of the Company maintained for such purpose in The City
of New York, or at such other office or agency of the Company as may be
maintained for such purpose pursuant to Section 2.3 of
the Indenture; provided, however, that, at the option of the Company, each
installment of interest may be paid by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Note
Register. Payments in respect of Securities represented by a Global
Security (including principal, premium, if any, and interest) will be made by
wire transfer of immediately available funds to the accounts specified by The
Depository Trust Company. Payments in respect of Securities
represented by Definitive Securities (including principal, premium, if any, and
interest) held by a Holder of at least $1,000,000 aggregate principal amount of
Securities represented by Definitive Securities will be made by wire transfer to
a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 15 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its
discretion).
B-2
3.
Paying Agent and
Registrar
Initially, The Bank of New York
(the “Trustee”), will act as Trustee, Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice to any Securityholder. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4.
Indenture
The Company issued the Securities under
an Indenture dated as of June 5, 2001 (as it may be amended or supplemented from
time to time in accordance with the terms thereof, the “Indenture”), between the
Company and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. (S)(S)
77aaa-77bbbb) as in effect on the date of the Indenture (the
“Act”). Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture and
the Act for a statement of those terms. In the event of any
inconsistency between the terms of this Security and the terms of the Indenture,
the terms of the Indenture shall control.
The Securities are general unsecured
senior obligations of the Company, including (a) $400,000,000 aggregate
principal amount of Securities being offered on the Issue Date (subject to Section 2.9 of
the Indenture) and any Additional Securities. The Security is one of
the Securities referred to in the Indenture. The Initial Securities,
Additional Securities and Exchange Securities will be treated as a single class
of securities under the Indenture. The Indenture imposes certain
limitations on, among other things: the incurrence of certain liens
and sale-leaseback transaction by the Company or its Subsidiaries and
consolidations, mergers and sales of assets of the Company.
5.
Redemption
The Securities will be redeemable, at
the option of the Company, at any time in whole, or from time to time in part,
upon not less than 30 and not more than 60 days’ prior notice mailed to each
Holder of Securities to be so redeemed at such Holder’s registered address, at a
redemption price equal to the greater of
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100%
of the principal amount of the Securities to be redeemed;
and
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the
sum of the present values of the remaining scheduled
payments thereon consisting of principal and interest,
exclusive of interest accrued to the date of redemption, at the
rate in effect on the date of calculation of the redemption
price, discounted to the date of redemption on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day
months) at the applicable Treasury Rate (as defined below),
plus 25 basis points;
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plus, in each case, accrued interest to the date of
redemption.
B-3
For purposes of determining the
optional redemption price, the following definitions are
applicable:
“Comparable Treasury Issue” means the
United States Treasury security selected by an Independent Investment
Banker as having a maturity comparable to the remaining term of the Securities
to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of such
Securities.
“Comparable Treasury Price” means, with
respect to any redemption date,
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the
average of four Reference Treasury Dealer Quotations obtained by
the Trustee for that redemption date, after excluding the
highest and lowest of such reference Treasury Dealer
Quotations; or
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if
the Trustee is unable to obtain at least four such Reference
Treasury Dealer Quotations, the average of all Reference
Treasury Dealer Quotations obtained by the
Trustee.
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“Independent Investment Banker” means
one of the Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
“Reference Treasury Dealer” means each
of Banc of America Securities LLC, X.X. Xxxxxx Securities Inc. (or their
successors) and two other primary U.S. Government Securities dealers in
New York City appointed by the Trustee in consultation with the Company
(each, a “Primary Treasury Dealer”); provided, however, that if any of the
foregoing shall cease to be a Primary Treasury Dealer, the Company shall
substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations”
means, with respect to each Reference Treasury Dealer and any Redemption Date,
an average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue for the Securities, expressed in each case as a
percentage of its principal amount, quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
business day preceding such Redemption Date.
“Treasury Rate” means, with respect to
any redemption date for the Securities,
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the
yield, under the heading which represents the average for
the immediately preceding week, appearing in the most recently
published statistical release designated “H.15(519)” or any
successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption “Treasury
Constant Maturities,” for the maturity corresponding to the Comparable
Treasury Issue (if
no maturity is within three months before or after the
applicable maturity date, yields for the two published
maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Treasury
Rate shall be interpolated or extrapolated from such yields on
a straight line basis, rounding to the nearest month);
or
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B-4
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if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such redemption
date.
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The Treasury Rate shall be calculated
on the third business day preceding the redemption date.
In the case of any partial redemption,
selection of the Securities for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed or, if the Securities are not so
listed, then on a pro rata basis, by lot or by such other method as the Trustee
shall deem to be fair and appropriate (and in such manner as complies with
applicable legal requirements) provided that (i) Securities and portions thereof
that the Trustee selects shall be in amounts of $1,000 or an integral multiple
of $1,000 and (ii) no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than $1,000. If
any Security is to be redeemed in part only, the notice of redemption relating
to such Security shall state the portion of the principal amount thereof to be
redeemed. A new Security in principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Security. On and after the redemption
date, interest will cease to accrue on Securities or portions thereof called for
redemption as long as the Company has deposited with the Trustee or with a
Paying Agent (or, if applicable, segregated and held in trust) money sufficient
to pay the redemption price of, and accrued interest on, all the Securities
which are to be redeemed on such date.
6.
Denominations; Transfer;
Exchange
The Securities are in registered form
without coupons in denominations of principal amount of $1,000 and whole
multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not (A) issue, register the transfer of
or exchange any Security during a period beginning at the opening of 15 days
before the day of any selection of Securities for redemption and ending at the
close of business on the day of selection, (B) register the transfer of or to
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (C) register the
transfer of or to exchange a Security between a record date and the next
succeeding interest payment date.
B-5
7.
Persons
Deemed Owners
The registered Holder of this Security
will be treated as the owner of it for all purposes.
8.
Unclaimed
Money
If money for the payment of principal
or interest remains unclaimed for two years, the Trustee or Paying Agent shall
pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the
money must look only to the Company and not to the Trustee for
payment.
9.
Defeasance
Subject to certain conditions set forth
in the Indenture, the Company at any time may terminate some or all of its
obligations under the Securities and the Indenture if the Company deposits with
the Trustee money or U.S. Government Securities for the payment of
principal, premium, if any, and interest on the Securities to redemption or
maturity, as the case may be.
10. Amendment,
Waiver
Subject to certain exceptions set forth
in the Indenture, (i) the Indenture or the Securities may be amended with the
written consent of the Holders of at least a majority in principal amount of the
then outstanding Securities and (ii) any default (other than with respect to
nonpayment or in respect of a provision that cannot be amended without the
written consent of each Securityholder affected) or noncompliance with any
provision may be waived with the written consent of the Holders of a majority in
principal amount of the then outstanding Securities. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article IV of
the Indenture, or to add guarantees with respect to the Securities, or to secure
the Securities, or to add additional covenants of the Company, or surrender
rights and powers conferred on the Company, or to comply with any request of the
SEC in connection with qualifying the Indenture under the Act, or to make any
change that does not adversely affect the rights of any
Securityholder.
B-6
11. Defaults and
Remedies
Under the Indenture, Events of Default
include (i) default in any payment of interest or additional interest on any
Security when due, continued for 30 days; (ii) default in the payment of
principal or premium, if any, on any Security when due at its Stated Maturity,
upon optional redemption, upon declaration or otherwise; (iii) default
by
the Company in the performance of or breaches by the Company of
any covenant or agreement in the Indenture or under the Securities, other than
those referred to in (i) or (ii), where such default continues for 60 days after
written notice from the Trustee or the Holders of at least 25% in principal
amount of the outstanding Securities; (iv) (a) failure by the Company or any of
its Subsidiaries to pay, in accordance with its terms and when payable, any of
the principal, premium, if any, interest or additional amounts, if any, on any
Debt (including the Securities, other than the Securities, if any, with respect
to which the failure to pay principal, premium, if any, interest or additional
interest is also an Event of Default under clauses (i), (ii) or both)
having, in the aggregate, a then outstanding principal amount in excess of
$20,000,000, at the later of final maturity or the expiration of any applicable
grace period or (b) acceleration of the maturity of Debt in an aggregate
principal amount in excess of $20,000,000, if that acceleration results from a
default under the instrument giving rise to or securing such Debt; or (v)
certain events of bankruptcy, insolvency or reorganization of the Company.If an Event of Default described in
clauses (i), (ii), (iii) and (iv) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in outstanding principal
amount of the Securities by notice to the Company and the Trustee, may, and the
Trustee at the request of such Holders shall, declare the principal of, premium,
if any, and accrued and unpaid interest, if any, on all the Securities to be due
and payable. Upon such a declaration, such principal, premium and
accrued and unpaid interest shall be immediately due and payable. If
an Event of Default described in clause (v) above occurs and is continuing,
the principal of, premium, if any, and accrued and unpaid interest on all the
Securities will become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders.
Securityholders may not enforce the
Indenture or the Securities except as provided in the Indenture. The
Trustee may refuse to enforce the Indenture or the Securities unless it receives
reasonable indemnity or security. Subject to certain limitations,
Holders of a majority in principal amount of the Securities may direct the
Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default or Event of
Default (except a Default or Event of Default in payment of principal of,
premium, if any, or interest on any Security) if it determines in good faith
that withholding notice is in the interests of Securityholders.
12. Trustee Dealings with the
Company
Subject to certain limitations set
forth in the Indenture, the Trustee under the Indenture, in its individual or
any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Company or its
Affiliates and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee.
13. No Recourse Against
Others
An incorporator, director, officer,
employee, Affiliate or stockholder of the Company, solely by reason of this
status, shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such
liability. The waiver and release are part of the consideration for
the issue of the Securities.
B-7
14. Authentication
This Security shall not be valid until
an authorized signatory of the Trustee (or an authenticating agent acting on its
behalf) manually signs the certificate of authentication on the other side of
this Security.
15. Abbreviations
Customary abbreviations may be used in
the name of a Securityholder or an assignee, such as TEN COM (=tenants in
common), TEN ENT (=tenants by the entirety), JT B-7 TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST (=custodian) and
U/G/M/A (=Uniform Gift to Minors Act).
16. Cusip Numbers
Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures the
Company has caused CUSIP numbers to be printed on the Securities and has
directed the Trustee to use CUSIP numbers in notices of redemption as a
convenience to Securityholders. No representation is made as to the
accuracy of such numbers either as printed on the Securities or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
17. Governing
Law
This Security shall be governed by, and
construed in accordance with, the laws of the State of
New York.
The Company will furnish to any
Securityholder upon written request and without charge to the Securityholder a
copy of the Indenture which has in it the text of this
Security. Requests may be made to:
The Black
& Xxxxxx Corporation
000 Xxxx
Xxxxx Xxxx
Towson,
Maryland 21286
Attention: Treasurer
B-8
ASSIGNMENT
FORM
To assign
this Security, fill in the form below:
I or we
assign and transfer this Security to
_________________________________________
(Print or
type assignee’s name, address and zip code)
_________________________________
(Insert
assignee’s soc. sec. or tax I.D. No.)
and
irrevocably appoint ____________ agent to transfer this Security on the books of
the Company. The agent may substitute another to act for him.
Date:
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Your
Signature:
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Signature
Guarantee:
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(Signature
must be guaranteed)
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Sign
exactly as your name appears on the
other side of this Security.
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The
signature(s) should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program), pursuant to SEC
Rule 17Ad-15.
B-9
[TO BE
ATTACHED TO GLOBAL SECURITIES]
SCHEDULE
OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in
this Global Security have been made:
Date
of
Exchange
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Amount
of decrease in
Principal
Amount of this
Global
Security
|
Amount
of increase in
Principal
Amount of
this
Global Security
|
Principal
Amount of
this
Global Security
following
such decrease
or
increase
|
Signature
of authorized
signatory
of Trustee or
Securities
Custodian
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B-10