EXHIBIT 4.4
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.13 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER 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.
AVONDALE XXXXX, INC.
10-1/4% SENIOR SUBORDINATED NOTES DUE 2013
No. _____
$_________________ CUSIP No. [______________]
Avondale Xxxxx, Inc. an Alabama corporation, promises to pay to Cede & Co. or
registered assigns the principal sum of One Hundred Fifty Million Dollars on
July 1, 2013.
Interest Payment Dates: January 1 and July 1, commencing January 1,
2004.
Record Dates: December 15 and June 15.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
AVONDALE XXXXX, INC.
By:
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Name: X. Xxxxxxx Xxxxxx
Title: Chairman, President and
Chief Executive Officer
By:
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Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice Chairman and
Chief Financial Officer
Dated: ______________, 2003
Certificate of Authentication:
Wachovia Bank, National Association,
as Trustee, certifies that this is one of
the Notes referred to in the within-
mentioned Indenture.
By:
-------------------------------------
Authorized Signatory
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AVONDALE XXXXX, INC.
10-1/4% SENIOR SUBORDINATED NOTES DUE 2013
1. Interest. Avondale Xxxxx, Inc. an Alabama corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
10.25% per annum from June 30, 2003 until maturity. The Company will pay
interest semiannually on January 1 and July 1 of each year (each an "Interest
Payment Date"), or if any such day is not a Business Day, on the next succeeding
Business Day. Interest on the Securities will accrue from the most recent
Interest Payment Date on which interest has been paid or, if no interest has
been paid, from June 30, 2003; provided that if there is no existing Default in
the payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided
further that the first Interest Payment Date shall be January 1, 2004. The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at a rate equal to the interest rate then in effect; it shall pay
interest on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the same rate 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. The Company shall pay interest on the
Securities (except defaulted interest) to the persons who are registered holders
of Securities at the close of business on the record date immediately preceding
the Interest Payment Date, even if such Securities are cancelled after the
record date and on or before the Interest Payment Date, except as provided in
Section 2.10 of the Indenture with respect to defaulted interest. The Notes
shall be payable as to principal, premium, if any, and interest at the office or
agency of the Company maintained for such purpose in The City of New York
maintained for such purposes, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set forth
in the register of Holders, and provided that payment by wire transfer of
immediately available funds shall be required with respect to principal of,
premium, if any, and interest on, all Global Notes and all other Securities, the
Holder of which has at least $1,000,000,000 aggregate principal amount of
Securities registered in its name and shall have provided wire transfer
instructions designating such account no later than 30 days immediately
preceding the relevant due date for payment (or such other dates as the Company
or Paying Agent may accept in its discretion) to the Company or the Paying
Agent. Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal of, premium, if any, and interest on
the Securities in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may pay such amounts by check payable in such money. It may mail an
interest check to a Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
4. Indenture. The Company issued the Securities under an
Indenture dated as of June 30, 2003 ("Indenture"), among the Company, Avondale
Incorporated, a Georgia corporation (such corporation, and its successors and
assigns under the Indenture, being herein called the "Guarantor"), and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all such terms,
and Securityholders are referred to the Indenture and the Act for a statement of
those terms.
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The Securities are general unsecured obligations of the Company limited
to $150,000,000 aggregate principal amount (subject to Section 2.06 of the
Indenture). The Indenture contains certain covenants that, among other things,
limit (i) the issuance of additional indebtedness by the Company and certain of
the Company's subsidiaries, (ii) the payment of dividends on capital stock of
the Company and certain of its subsidiaries and the purchase, redemption or
retirement of capital stock or subordinated indebtedness, (iii) investments,
(iv) certain transactions with affiliates, (v) sales of assets, including
capital stock of subsidiaries, and (vi) certain consolidations, mergers and
transfers of assets. The Indenture also prohibits certain restrictions on
distributions from certain subsidiaries. In addition, the Company may be
obligated, under certain circumstances and subject to the limitations set out in
the Indenture, to offer to repurchase Securities at a purchase price equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the date of repurchase.
5. Optional Redemption. Except as described below, the Notes will
not be redeemable at the Company's option prior to July 1, 2008. At any time on
or after July 1, 2008, the Company may, at its option, redeem all or any portion
of the Notes at the redemption prices (expressed as percentages of the principal
amount of the Notes) set forth below, plus, in each case, accrued interest
thereon to the applicable redemption date, if redeemed during the 12-month
period beginning July 1 of the years indicated below:
Year Percentage
---- ----------
2008 105.125%
2009 103.4167%
2010 101.7083%
2011 and thereafter 100.000%
At any time prior to July 1, 2008, the Company may at its option redeem
all or part of the notes at a redemption price equal to the greater of (1) 100%
of the principal amount of the notes being redeemed and (2) as determined by the
Quotation Agent, the sum of the present values of 105.125% of the principal
amount of the notes being redeemed and scheduled interest payments (excluding
interest accrued and unpaid to the date of redemption) on such notes to and
including July 1, 2008 discounted to the date of redemption on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 50 basis points, in either case plus accrued and unpaid
interest, if any, to the date of redemption.
Notwithstanding the foregoing, at any time and from time to time on or
prior to July 1, 2006, the Company may redeem in the aggregate up to 35% of the
aggregate principal amount of the Notes originally issued under the Indenture
with the proceeds of one or more Equity Offerings, at a redemption price
(expressed as a percentage of principal amount) of 110.25%, plus accrued and
unpaid interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); provided, however, that at least 65% of the aggregate
principal amount of the Notes originally issued under the Indenture must remain
outstanding after each such redemption.
6. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
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7. Put Provisions. Upon a Change of Control, any Holder of
Securities will have the right, subject to certain conditions, to cause the
Company to repurchase all or any part of the Securities of such Holder at a
repurchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued interest to the date of repurchase (subject to the
right of holders of record on the relevant record date to receive interest due
on the related interest payment date) as provided in, and subject to the terms
of, the Indenture.
8. Guaranty. To secure the due and punctual payment of the
principal and interest, if any, on the Securities and all other amounts payable
by the Company under the Indenture and the Securities when and as the same shall
be due and payable, whether at maturity, by acceleration or otherwise, according
to the terms of the Securities and the Indenture, the Guarantor has agreed to
guarantee the Obligations on a senior subordinated basis pursuant to the terms
of the Indenture.
9. Subordination. The Securities are subordinated to Senior
Indebtedness of the Company, as defined in the Indenture. To the extent provided
in the Indenture, Senior Indebtedness of the Company must be paid before the
Securities may be paid. The Company agrees, and each Securityholder by accepting
a Security agrees, to the subordination provisions contained in the Indenture
and authorizes the Trustee to give it effect and appoints the Trustee as
attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange. The Securities are in
registered form without coupons in denominations 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 register
the transfer of or exchange any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed or 15 days before an interest payment date.
11. Persons Deemed Owners. The registered Holder of this Security
may be treated as the owner of it for all purposes.
12. 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.
13. Discharge and Defeasance. Subject to certain conditions, 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 Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
14. 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
outstanding of the Securities and (ii) any default or noncompliance with any
provision may be waived with the written consent of the Holders of a majority in
principal amount outstanding of the Securities. Subject to certain 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 5 of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities or to secure the Securities, or to add additional covenants or
surrender rights and powers conferred on the Company, or to comply with any
request of the SEC in
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connection with qualifying the Indenture under the Act, or to make certain
changes in the subordination provisions, or to make any change that does not
adversely affect the rights of any Securityholder.
15. Defaults and Remedies. Under the Indenture, Events of Default
include (i) default for 30 days in payment of interest on the Securities; (ii)
default in payment of principal on the Securities at maturity, upon redemption
pursuant to paragraph 5 of the Securities, upon acceleration or otherwise, or
failure by the Company to redeem or purchase Securities when required; (iii)
failure by the Company or the Guarantor to comply with other agreements in the
Indenture or the Securities, in certain cases subject to notice and lapse of
time; (iv) certain accelerations (including failure to pay within any grace
period after final maturity) of other Indebtedness of the Company if the amount
accelerated (or so unpaid) exceeds $10,000,000; (v) certain events of bankruptcy
or insolvency with respect to the Company, the Guarantor and the Significant
Subsidiaries; (vi) certain judgments or decrees for the payment of money in
excess of $10,000,000; and (vii) the Guaranty ceasing to be in full force and
effect (other than in accordance with its terms). If an Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the Securities may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which will result in the Securities being due and payable immediately upon the
occurrence of such Events of Default.
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 (except a Default
in payment of principal or interest ) if it determines that withholding notice
is in the interest of the Holders.
16. Trustee Dealings with the Company. Subject to certain
limitations imposed by the Act, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with and collect obligations owed to it by the 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.
17. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company or the Trustee shall not have any liability
for any obligations of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
18. Authentication. This Security shall not be valid until an
authorized signatory of the Trustee (or an authenticating agent) manually signs
the certificate of authentication on the other side of this Security.
19. Abbreviations. Customary abbreviations may be used in the name
of a Securityholder or an assignee, such as TEN COM (=tenants in common), TEN
ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/MA
(=Uniform Gift to Minors Act).
20. Governing Law. THIS SECURITY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Avondale Xxxxx, Inc,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, Xx.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
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(Insert assignee's social security or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________ as agent to transfer this Note
on the books of the Company. The agent may substitute another to act for him.
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Your Signature:
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(Sign exactly as your name appears on the other side of this Note)
Your Name:
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Date:
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Signature Guarantee:
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FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.06 or Section 4.09 of the Indenture, check the box: ?
If you want to have only part of this Note purchased by the Company
pursuant to Section 4.06 or Section 4.09 of the Indenture, state the amount (in
integral multiples of $1,000:
$__________________
Date:___________________ Signature:___________________________________________
(Sign exactly as your name appears on the other side of this Note)
Name:__________________________________________________________________________
Signature Guarantee:__________________________________________________________
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
PRINCIPAL AMOUNT OF SIGNATURE OF
AMOUNT OF DECREASE IN AMOUNT OF INCREASE IN THIS GLOBAL NOTE AUTHORIZED SIGNATORY
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF FOLLOWING SUCH OF TRUSTEE OR NOTES
DATE OF EXCHANGE THIS GLOBAL NOTE THIS GLOBAL NOTE DECREASE OR INCREASE CUSTODIAN
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