EXHIBIT 4.3
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XXXXXX INTERNATIONAL INDUSTRIES, INCORPORATED
[ ] Senior Notes due 2007
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INDENTURE
Dated as of ___________, 1997
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PNC BANK, NATIONAL ASSOCIATION,
as Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1)................... 6.10
(a)(2)..................... 6.10
(a)(3)..................... N.A.
(a)(4)..................... N.A.
(b)........................ 6.8; 6.10
(c)........................ N.A.
311(a)...................... 6.11
(b)........................ 6.11
(c)........................ N.A.
312(a)...................... 2.5
(b)........................ N.A.
(c)........................ N.A.
313(a)...................... 6.6
(b)(1)..................... N.A.
(b)(2)..................... 6.6
(c)........................ 6.6
(d)........................ 6.6
314(a)...................... 9.2
(b)........................ N.A.
(c)(1)..................... 9.4
(c)(2)..................... 9.4
(c)(3)..................... N.A.
(d)........................ N.A.
(e)........................ 9.5
(f)........................ N.A.
315(a)...................... 6.1
(b)........................ 6.5; 9.2
(c)........................ 6.1
(d)........................ 6.1
(e)........................ 5.11
316(a)(last sentence)....... 9.6
(a)(1)(A).................. 5.5
(a)(1)(B).................. 5.4
(a)(2)..................... N.A.
(b)........................ 5.7
317(a)(1)................... 5.8
(a)(2)..................... 5.9
(b)........................ 2.4
318(a)...................... 9.1
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Incorporation by Reference....... 1
SECTION 1.1. Definitions 1
SECTION 1.2. Other Definitions.................................. 5
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.. 5
SECTION 1.4. Rules of Construction.............................. 6
ARTICLE II
The Senior Notes................................. 6
SECTION 2.1. Form and Dating.................................... 6
SECTION 2.2. Execution and Authentication....................... 7
SECTION 2.3. Registrar and Paying Agent......................... 8
SECTION 2.4. Paying Agent To Hold Money in Trust................ 8
SECTION 2.5. Noteholder Lists................................... 8
SECTION 2.6. Transfer and Exchange.............................. 9
SECTION 2.7. Replacement Senior Notes........................... 11
SECTION 2.8. Outstanding Senior Notes........................... 12
SECTION 2.9. Temporary Senior Notes............................. 12
SECTION 2.10. Cancellation...................................... 12
SECTION 2.11. Defaulted Interest................................ 12
SECTION 2.12. CUSIP Numbers..................................... 13
ARTICLE III
Covenants....................................... 13
SECTION 3.1. Payment of Senior Notes............................ 13
SECTION 3.2. Maintenance of Office or Agency for Registration
of Transfer, Exchange and Payment of Senior Notes..
SECTION 3.3. Appointment to Fill a Vacancy in the Office of
Trustee............................................ 14
SECTION 3.4. Provision as to Paying Agent....................... 14
SECTION 3.5. Maintenance of Corporate Existence................. 15
SECTION 3.6. Limitation on Liens................................ 15
SECTION 3.7. Limitation on Sale and Leaseback Transactions...... 17
SECTION 3.8. Compliance Certificate............................. 18
SECTION 3.9. Further Instruments and Acts....................... 18
SECTION 3.10. Reports by the Company to the Holders............. 18
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Page
ARTICLE IV
Successor Company............................. 19
SECTION 4.1. When Company May Merge or Transfer Assets........ 19
ARTICLE V
Defaults and Remedies.......................... 20
SECTION 5.1. Events of Default................................ 20
SECTION 5.2. Acceleration..................................... 21
SECTION 5.3. Other Remedies................................... 22
SECTION 5.4. Waiver of Past Defaults.......................... 22
SECTION 5.5. Control by Majority.............................. 22
SECTION 5.6. Limitation on Suits.............................. 23
SECTION 5.7. Rights of Holders to Receive Payment............. 23
SECTION 5.8. Collection Suit by Trustee....................... 23
SECTION 5.9. Trustee May File Proofs of Claim................. 23
SECTION 5.10. Priorities...................................... 24
SECTION 5.11. Undertaking for Costs........................... 24
ARTICLE VI
Trustee........................................ 24
SECTION 6.1. Duties of Trustee................................ 24
SECTION 6.2. Rights of Trustee................................ 25
SECTION 6.3. Individual Rights of Trustee..................... 26
SECTION 6.4. Trustee's Disclaimer............................. 27
SECTION 6.5. Notice of Defaults............................... 27
SECTION 6.6. Reports by Trustee to Holders.................... 27
SECTION 6.7. Compensation and Indemnity....................... 27
SECTION 6.8. Replacement of Trustee........................... 28
SECTION 6.9. Successor Trustee by Merger...................... 29
SECTION 6.10. Eligibility; Disqualification................... 29
SECTION 6.11. Preferential Collection of Claims Against
Company......................................... 29
ARTICLE VII
Discharge of Indenture; Defeasance............. 29
SECTION 7.1. Discharge of Liability on Senior Notes;
Defeasance....................................... 29
SECTION 7.2. Conditions to Defeasance......................... 30
SECTION 7.3. Application of Trust Money....................... 32
SECTION 7.4. Repayment to Company............................. 32
SECTION 7.5. Indemnity for U.S. Government Obligations........ 32
SECTION 7.6. Reinstatement.................................... 32
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Page
ARTICLE VIII
Amendments....................................... 32
SECTION 8.1. Without Consent of Holders......................... 32
SECTION 8.2. With Consent of Holders............................ 33
SECTION 8.3. Compliance with Trust Indenture Act................ 34
SECTION 8.4. Revocation and Effect of Consents and Waivers...... 34
SECTION 8.5. Notation on or Exchange of Senior Notes............ 34
SECTION 8.6. Trustee To Sign Amendments......................... 34
ARTICLE IX
Miscellaneous.................................... 35
SECTION 9.1. Trust Indenture Act Controls........................ 35
SECTION 9.2. Notices 35
SECTION 9.3. Communication by Holders with other Holders......... 35
SECTION 9.4. Certificate and Opinion as to Conditions Precedent.. 36
SECTION 9.5. Statements Required in Certificate or Opinion....... 36
SECTION 9.6. When Senior Notes Disregarded....................... 36
SECTION 9.7. Rules by Trustee, Paying Agent and Registrar........ 36
SECTION 9.8. Legal Holidays...................................... 36
SECTION 9.9. Governing Law....................................... 36
SECTION 9.10. No Recourse Against Others......................... 37
SECTION 9.11. Successors 37
SECTION 9.12. Multiple Originals................................. 37
SECTION 9.13. Variable Provisions................................ 37
SECTION 9.14. Table of Contents; Headings........................ 37
SCHEDULES
Schedule 3.6(f) Existing Liens
EXHIBITS
Exhibit A Form of Global Note
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INDENTURE dated as of ___________, 1997, between XXXXXX INTERNATIONAL
INDUSTRIES, INCORPORATED, a Delaware corporation (the "Company"), and PNC BANK,
NATIONAL ASSOCIATION, a banking association organized under the laws of the
United States, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's [ ]% Senior
Notes due 2007 (the "Senior Notes"):
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.
"Affiliate" of any specified Person means (i) any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) any Person who is a director
or officer (A) of such Person, (B) of any Subsidiary of such Person or (C) of
any Person described in clause (i) above. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Attributable Debt" means, as to any Sale and Leaseback Transaction,
at any date as of which the amount of which thereof is to be determined, the
total net amount of rent required to be paid under such lease during the
remaining primary term thereof, discounted from the respective due dates thereof
to such date at the rate of interest of the Senior Notes. The net amount of
rent required to be paid under any such Sale and Leaseback Transaction for any
such period shall be the aggregate amount of rent payable by the lessee with
respect to such period after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board of
Directors.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in New York City and Philadelphia, Pennsylvania are
authorized or required by law to close.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent
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ownership interests in a Person (other than a corporation) and any and all
warrants or options to purchase any of the foregoing.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Xxxxxx International Industries, Incorporated, a
Delaware corporation.
"Consolidated Net Tangible Assets" means total assets (less applicable
reserves and other properly deductible items) after deducting therefrom (a) all
current liabilities and (b) all goodwill, trade names, trademarks, patents,
organization expenses and other like intangibles, all as set forth on the most
recent balance sheet of the Company and its consolidated subsidiaries and
computed in accordance with GAAP.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted principles in the United States of
America as in effect from time to time, including those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as are approved by a significant segment of the accounting
profession.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Holder" or "Noteholder" means the Person in whose name a Senior Note
is registered on the Registrar's books.
"Indebtedness" means, with respect to any Person on any date of
determination, all indebtedness or obligations of such Person, as reflected on
the balance sheet of such Person prepared in accordance with GAAP, other than
current trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Issue Date" means the date on which the Senior Notes are originally
issued.
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"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or security interest.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers (in
the case of the annual Officers' Certificate delivered pursuant to Section 3.10,
at least one of such Officers shall be the principal executive officer,
principal financial officer or principal accounting officer of the Company) and
that complies with Sections 9.4 and 9.5 of this Indenture and is delivered to
the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee and that complies with Sections 9.4 and 9.5
of this Indenture and delivered to the Trustee. The counsel may be an employee
of or counsel to the Company or the Trustee.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"principal" of a Senior Note means the principal of the Senior Note
payable on the security which is due or overdue or is to become due at the
relevant time.
"Principal Subsidiary" means (i) each Subsidiary of the Company
existing on the date hereof and (ii) any Subsidiary created or acquired after
the date hereof, including its Subsidiaries, which meets either of the following
conditions: (a) the Company and its other subsidiaries' investments in and
advances to the Subsidiary exceeds 10% of the total assets of the Company and
its subsidiaries consolidated as of the end of the most recently completed
fiscal year (for a proposed business combination to be accounted for as a
pooling of interests, this condition is also met when the number of common
shares exchanged by the Company exceeds 10% of its total common shares
outstanding at the date the combination is initiated) or (b) the Company and its
other subsidiaries' proportionate share of the total assets (after intercompany
eliminations) of the Subsidiary exceeds 10% of the total assets of the Company
and its subsidiaries consolidated as of the end of the most recently completed
fiscal year..
"Revolving Credit Facility" means the Multi-Currency, Multi-Option
Credit Agreement, dated as of September 30, 1994, among the Company, the
Subsidiary Borrowers and Subsidiary Guarantors parties thereto (each as defined
therein), the lenders parties thereto, NationsBank, N.A., as Co-Agent, Chase
Securities Inc., as arranger and The Chase Manhattan Bank, as Administrative
Agent, as the same may be amended, supplemented or otherwise modified from time
to time.
"Sale and Leaseback Transaction" means an arrangement with any Person
providing for the leasing by the Company or any Principal Subsidiary of real or
personal property that is to be sold or transferred by the Company or such
Principal Subsidiary to such
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Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Company or such Principal Subsidiary.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Notes Custodian" means the custodian with respect to the
Global Note (as appointed by the Depositary), 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.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of capital stock, entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939 (15 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" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
5
"Wholly-Owned Subsidiary" means a Subsidiary of the Company, all of
the Capital Stock of which (other than directors' qualifying shares) is owned by
the Company or another Wholly-Owned Subsidiary.
SECTION 1.2. Other Definitions.
Defined in
Term Section
"Agent Member"................ 2.1(c)
"Authenticating Agent"........ 2.2
"Bankruptcy Law".............. 5.1
"covenant defeasance option".. 7.1(b)
"Custodian"................... 5.1
"Definitive Senior Notes"..... 2.6(b)
"Event of Default"............ 5.1
"legal defeasance option"..... 7.1(b)
"Legal Holiday"............... 9.8
"Paying Agent"................ 2.3
"Underwriting Agreement"...... 2.1(b)
"Registrar"................... 2.3
"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 notes" means the Senior Notes.
"indenture noteholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by the TIA by reference to another statute or defined by an SEC
rule have the meanings assigned to them by such definitions.
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SECTION 1.4. Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "including" means including without limitation;
(iv) words in the singular include the plural and words in the
plural include the singular; and
(v) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP.
ARTICLE II
The Senior Notes
SECTION 2.1. Form and Dating. (a) The Senior Notes and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A which is hereby incorporated by reference and expressly made a part of
this Indenture. The Senior Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage, in addition to those set forth on
Exhibit A. The Company and the Trustee shall approve the form of the Senior
Notes and any notation, endorsement or legend on them. Each Senior Note shall
be dated the date of its authentication. The terms of the Senior Notes set
forth in Exhibit A 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) Global Notes. The Senior Notes are being offered and sold by the
Company pursuant to an Underwriting Agreement, dated ___________, 1997, between
the Company and Chase Securities Inc., NationsBanc Capital Markets, Inc., Xxxxxx
Brothers Inc., Xxxxxxxxxx Securities and Societe Generale Securities Corporation
(the "Underwriting Agreement").
Senior Notes shall be issued initially in the form of one or more
permanent global Senior Notes in definitive, fully registered form only, without
interest coupons, in denominations of $1,000 and any integral multiple thereof,
which shall bear the legend set forth in Exhibit A hereto (each, a "Global
Note"), and shall be deposited on behalf of the purchasers of the Senior Notes
represented thereby with the Trustee, at its corporate trust office, as
custodian for the Depositary, and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the Global
Notes may from time
7
to time be increased or decreased by endorsements made on such Global Notes by
the Trustee, the Senior Notes Custodian or the Depositary or its nominee as
hereinafter provided.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only to
Global Notes deposited with the Trustee, as custodian for the Depositary.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary or by the Trustee as the custodian of the
Depositary or under such Global Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Agent Members, the operation of customary practices of
the Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Note.
(d) Certificated Senior Notes. Except as provided in Section 2.6,
owners of beneficial interests in Global Notes will not be entitled to receive
Definitive Senior Notes (as hereinafter defined).
SECTION 2.2. Execution and Authentication. Two Officers shall sign
the Senior Notes for the Company by manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or reproduced on the
Senior Notes and may be in facsimile form.
If an Officer whose signature is on a Senior Note no longer holds that
office at the time the Trustee authenticates the Senior Note, the Senior Note
shall be valid nevertheless.
A Senior Note shall not be valid until an authorized signatory of the
Trustee manually authenticates the Senior Note. The signature of the Trustee on
a Senior Note shall be conclusive evidence that such Senior Note has been duly
and validly authenticated and issued under this Indenture.
The Trustee shall authenticate and deliver Senior Notes for original
issue in an aggregate principal amount of $150,000,000 upon a written order of
the Company signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of the Company. Such order shall specify
the date on which the original issue of Senior Notes is to be authenticated.
The aggregate principal amount of Senior Notes outstanding at any time may not
exceed $150,000,000 except as provided in Section 2.7.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Senior Notes. Unless
limited by the terms of such appointment, any such Authenticating Agent may
authenticate Senior Notes whenever
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the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent.
SECTION 2.3. Registrar and Paying Agent. The Company shall maintain
an office or agency where Senior Notes may be presented for registration of
transfer or for exchange (the "Registrar") and an office or agency where Senior
Notes may be presented for payment (the "Paying Agent"). The Registrar shall
keep a register of the Senior Notes and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee in writing of the name and address of each such agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor pursuant to
Section 6.7. The Company or any of its domestically incorporated Wholly-Owned
Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Paying Agent or the Registrar may resign as such upon 30 days' prior written
notice to the Company and the Trustee; upon resignation of any Paying Agent or
Registrar, the Company shall appoint a successor Paying Agent or Registrar, as
the case may be, no later than 30 days thereafter and shall provide notice in
writing to the Trustee of such successor Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying
Agent for the Senior Notes.
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 Senior Note is due and payable, the Company shall deposit with the Paying
Agent a sum sufficient to pay such principal or interest when due. The Company
shall require each Paying Agent (other than the Trustee) to agree in writing
that such Paying Agent shall hold in trust for the benefit of Holders or the
Trustee all money held by such Paying Agent for the payment of principal of or
interest on the Senior Notes and shall notify the Trustee of any default by the
Company in making any such payment. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund. The Company at any time may require a Paying Agent
(other than the Trustee) to pay all money held by it to the Trustee and to
account for any funds disbursed by such Paying Agent. Upon complying with this
Section 2.4, 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 Senior Notes.
SECTION 2.5. Noteholder 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
9
addresses of Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee, in writing at least seven Business Days before each
interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders.
SECTION 2.6. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. (i) The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary or the Trustee, as the custodian for the Depositary, in
accordance with this Indenture (including applicable restrictions on transfer
set forth herein) and the procedures of the Depositary therefor.
(ii) A Global Note shall be exchangeable pursuant to this Section
2.6(a) for definitive Senior Notes ("Definitive Senior Notes") registered in the
names of Persons owning beneficial interests in such Global Note only if (A)
such exchange is made in compliance with the provisions of this Section 2.6 and
(B) any of the following events shall have occurred: (1) the Depositary for
such Global Note notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Note or such Depositary ceases to be a clearing
agency registered under the Exchange Act, at a time when such Depositary is
required to be so registered in order to act as Depositary, and a successor
depositary is not appointed by the Company within 90 days thereafter, (2) the
Company executes and delivers to the Trustee an Officers' Certificate stating
that such Global Note shall be so exchangeable or (3) there shall have occurred
and be continuing an Event of Default with respect to the Senior Notes and any
of the Company, the Depositary or the Trustee so requests. Upon exchange of a
Global Note for one or more Definitive Senior Notes, such Definitive Senior
Notes shall not thereafter be exchangeable for beneficial interests in a Global
Note.
(iii) Any Global Note that is exchangeable for Definitive Senior
Notes registered in the name of the owners of beneficial interests therein
pursuant to this Section 2.6 shall be surrendered by the Depositary to the
Trustee to be so exchanged, without charge, and the Company shall sign and the
Trustee shall authenticate and deliver, upon such exchange of such Global Note,
an equal aggregate principal amount of Definitive Senior Notes of authorized
denominations. Definitive Senior Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.6 shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Definitive
Senior Notes to the Persons in whose names such Senior Notes are so registered
in accordance with the instructions of the Depositary.
(iv) The registered Holder of a Global Note 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 Senior Notes.
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(v) In the event of the occurrence of any of the events specified in
Section 2.6(a)(ii), the Company will promptly make available to the Trustee a
reasonable supply of Definitive Senior Notes.
(vi) Notwithstanding any other provision of this Indenture, a Global
Note may not be transferred except as a whole by the Depositary for such Global
Note to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary.
(b) Cancellation or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have either been exchanged for Definitive
Senior Notes or canceled, such Global Note shall be returned to the Depositary
for cancellation or retained and canceled by the Trustee.
(c) Transfer and Exchange of Definitive Senior Notes. When
Definitive Senior Notes are presented by a Holder to the Registrar or a co-
registrar with a request (i) to register the transfer of such Definitive Senior
Notes; or (ii) to exchange such Definitive Senior Notes for an equal principal
amount of Definitive Senior Notes of other authorized denominations, the
Registrar or co-registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met; provided,
however, that such Definitive Senior Notes shall be duly endorsed or accompanied
by a written instrument of transfer in form reasonably satisfactory to the
Company and the Registrar or co-registrar, duly executed by such Holder or his
attorney duly authorized in writing.
(d) Obligations with Respect to Transfers and Exchanges of Senior
Notes.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive Senior
Notes and Global Notes 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 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 or similar governmental charges payable upon exchange or
transfer pursuant to Section 2.6 or pursuant to paragraph 5 of the Senior
Notes).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of any Senior Note for a period
beginning 15 Business Days before an interest payment date and ending on
such interest payment date.
(iv) Prior to the due presentation for registration of transfer
of any Senior Note, the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the person in whose name a
Senior Note is registered as the absolute owner of such Senior Note for the
purpose of receiving payment of principal of and interest on such Senior
Note and for all other purposes whatsoever, whether or
11
not such Senior Note 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) All Senior Notes 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 Senior
Notes surrendered upon such transfer or exchange.
(e) No Obligation of the Trustee. (i) The Trustee shall have no
responsibility or obligation to any owner of a beneficial interest in a Global
Note, a member of, or a participant in the Depositary or any other Person with
respect to the accuracy of the records of the Depositary or its nominee or of
any participant or member thereof, with respect to any ownership interest in the
Senior Notes or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice or
the payment of any amount or delivery of any Senior Notes (or other security or
property) under or with respect to such Senior Notes. All notices and
communications to be given to the Holders and all payments to be made to Holders
in respect of the Senior Notes shall be given or made only to or upon the order
of the registered Holders (which shall be the Depositary or its nominee in the
case of a Global Note). The rights of owners of beneficial interests in any
Global Note shall be exercised only through the Depositary subject to the
applicable rules and procedures of the Depositary. The Trustee may rely and
shall be fully protected in relying upon information furnished by the Depositary
with respect to its members, participants and any beneficial owners.
(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 Senior Note (including any transfers between or among Depositary
participants, members or owners of beneficial interests in any Global Note);
provided that the Trustee shall have the right to require such certifications,
Opinions of Counsel or other documentation in respect of exchanges of beneficial
ownership interests in Global Notes for Definitive Senior Notes as it may
reasonably request.
SECTION 2.7. Replacement Senior Notes. If a mutilated Senior Note is
surrendered to the Registrar or if the Holder of a Senior Note claims that the
Senior Note has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Senior Note if the
Company provides the Trustee with an Officer's Certificate stating that the
requirements of Section 8-405 of the Uniform Commercial Code are met and the
Holder satisfies any other reasonable requirements of the Trustee. Mutilated
Senior Notes must be surrendered to the Registrar. 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 Senior Note is replaced. The Company and the Trustee may charge
the Holder for their expenses in replacing a Senior Note. Every replacement
Senior Note is an additional obligation of the Company.
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SECTION 2.8. Outstanding Senior Notes. Senior Notes outstanding at
any time are all Senior Notes authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section 2.8 as not outstanding. A Senior Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Senior
Note.
If a Senior Note is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Senior Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a maturity date money sufficient to pay all principal and
interest payable on that date with respect to the Senior Notes (or portions
thereof) to be maturing, and the Paying Agent is not prohibited from paying such
money to the Noteholders on that date pursuant to the terms of this Indenture,
then on and after that date such Senior Notes (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.9. Temporary Senior Notes. Until Definitive Senior Notes
are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Senior Notes. Temporary Senior Notes shall be
substantially in the form of definitive Senior Notes but may have variations
that the Company considers appropriate for temporary Senior Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
Definitive Senior Notes. After the preparation of definitive Senior Notes, the
temporary Senior Notes shall be exchangeable for Definitive Senior Notes upon
surrender of the temporary Senior Notes 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 Senior
Notes, the Company shall execute, and the Trustee shall authenticate and deliver
in exchange therefor, one or more Definitive Senior Notes representing an equal
principal amount of Senior Notes. Until so exchanged, the Holder of temporary
Senior Notes shall in all respects be entitled to the same benefits under this
Indenture as a holder of Definitive Senior Notes.
SECTION 2.10. Cancellation. The Company at any time may deliver
Senior Notes to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Senior Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else
shall cancel and destroy (subject to the record retention requirements of the
Exchange Act) all Senior Notes surrendered for registration of transfer,
exchange, payment or cancellation and deliver a certificate of such destruction
to the Company unless the Company directs the Trustee to deliver canceled Senior
Notes to the Company. The Company may not issue new Senior Notes to replace
Senior Notes it delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Company defaults in a
payment of interest on the Senior Notes, the Company shall pay defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the persons who
are Noteholders on a subsequent special record date.
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The Company shall fix or cause to be fixed (or upon the Company's failure to do
so the Trustee shall fix pursuant to a written instruction of Holders of at
least a majority in principal amount of the Senior Notes) any such special
record date and payment date to the reasonable satisfaction of the Trustee which
specified record date shall not be less than 10 days prior to the payment date
for such defaulted interest and shall promptly mail or cause to be mailed to
each Noteholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Senior Note and the date of the proposed payment, 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 so deposited to be held in trust for the
benefit of the Person entitled to such defaulted interest as provided in this
Section 2.11.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Senior Notes
may use "CUSIP" numbers (if then generally in use).
ARTICLE III
Covenants
SECTION 3.1. Payment of Senior Notes. The Company shall promptly pay
the principal of and interest on the Senior Notes on the dates and in the manner
provided in the Senior Notes 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 Noteholders on that date
pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Senior Notes, and subject to Section 2.11, 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. Maintenance of Office or Agency for Registration of
Transfer, Exchange and Payment of Senior Notes. So long as any of the Senior
Notes shall remain outstanding, the Company will maintain an office or agency in
the Borough of Manhattan, the City of New York, State of New York, where the
Senior Notes may be surrendered for exchange or registration of transfer as in
this Indenture provided, and where notices and demands to or upon the Company in
respect to the Senior Notes may be served, and where
14
the Senior Notes may be presented or surrendered for payment. The Company may
also from time to time designate one or more other offices or agencies where
Senior Notes may be presented or surrendered for any and all such purposes and
may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, the City
of New York, State of New York for such purposes. The Company will give to the
Trustee prompt written notice of the location of any such office or agency and
of any change of location thereof. The Company initially appoints the Trustee
x/x XXX, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 for each of said purposes.
In case the Company shall fail to maintain any such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, such surrenders, presentations and demands may be made and notices may
be served at the principal office of the Trustee in the City of Philadelphia,
Commonwealth of Pennsylvania, and the Company hereby appoints the Trustee its
agent to receive at the aforesaid office all such surrenders, presentations,
notices and demands. The Trustee will give the Company prompt notice of any
change in location of the Trustee's principal office.
SECTION 3.3. Appointment to Fill a Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.8, a Trustee, so that
there shall at all times be a Trustee hereunder.
SECTION 3.4. Provision as to Paying Agent. (a) If the Company shall
appoint a paying agent other than the Trustee, it will cause such Paying Agent
to execute and deliver to the Trustee an instrument in which such agent shall
undertake, subject to the provisions of this Section 3.4,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of or interest on the Senior Notes such sums which
have been paid to it by the Company (or by any other obligor on the Senior
Notes) in trust for the benefit of the holders of the Senior Notes and will
notify the Trustee of the receipt of sums to be so held,
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Senior Notes) to make any payment
of the principal of or interest on the Senior Notes when the same shall be
due and payable,
(iii) that it will at any time during the continuance of any
Event of Default specified in Section 5.1(i) or 5.1(ii), upon the written
request of the Trustee, deliver to the Trustee all sums so held in trust by
it, and
(iv) acknowledge, accept and agree to comply in all aspects with
the provisions of this Indenture relating to the duties, rights and
liabilities of such Paying Agent.
15
(b) If the Company shall not act as its own Paying Agent, it will, by
10:00 a.m. (New York City time) on the Business Day prior to each due date of
the principal of or interest on any Senior Notes, deposit with such Paying Agent
a sum in same day funds sufficient to pay the principal of or interest so
becoming due, such sum to be held in trust for the benefit of the holders of
Senior Notes entitled to such principal of or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
failure so to act.
(c) If the Company shall act as its own Paying Agent, it will, on or
before each due date of the principal of or interest on the Senior Notes, set
aside, segregate and hold in trust for the benefit of the persons entitled
thereto, a sum sufficient to pay such principal or interest so becoming due and
will notify the Trustee of any failure to take such action.
(d) Anything in this Section 3.4 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any Paying Agent hereunder, as
required by this Section 3.4, such sums to be held by the Trustee upon the
trusts herein contained.
(e) Anything in this Section 3.4 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.4 is subject to
the provisions of Sections 7.4 and 7.6.
SECTION 3.5. Maintenance of Corporate Existence. So long as any of
the Senior Notes shall remain outstanding, the Company will at all times (except
as otherwise provided or permitted elsewhere in this Indenture) do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and franchises and the corporate existence and franchises of
each Subsidiary.
SECTION 3.6. Limitation on Liens. So long as any of the Senior Notes
are outstanding, the Company will not, and will not permit any Principal
Subsidiary to, create, incur, assume or suffer to exist any Lien upon, any
property or assets owned or leased by the Company or any Principal Subsidiary to
secure any Indebtedness, without making effective provision whereby the Senior
Notes then outstanding shall (so long as such other Indebtedness shall be so
secured) be equally and ratable secured; provided, however, that this
restriction shall not apply to or prevent the creation or existence of:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Company or its Principal
Subsidiaries, as the case may be, in conformity with GAAP (or, in the case
of foreign subsidiaries, generally accepted accounting principles in effect
from time to time in their respective jurisdictions of incorporation);
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that are not
overdue for a
16
period of more than 60 days or that are being contested in good faith by
appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and that do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Principal Subsidiary;
(f) any Lien in existence on the date hereof listed on Schedule
3.6(f), provided that no such Lien is spread to cover any additional
property after the date hereof and that the amount of Indebtedness secured
thereby is not increased;
(g) any Lien arising in connection with trade letters of credit issued
for the account of the Company or a Principal Subsidiary securing the
reimbursement obligations in respect of such letters of credit, provided,
that such Liens encumber only the property being acquired through payments
made under such letters of credit or the documents of title and shipping
and insurance documents relating to such property;
(h) any Lien upon intellectual property acquired by the Company or a
Principal Subsidiary (such as software) securing the obligation of the
Company or such Principal Subsidiary to make royalty or similar payments to
the seller of such intellectual property, provided, that such Liens
encumber only the intellectual property to which such payments relate;
(i) any Lien upon any property or assets created at the time of the
acquisition, purchase, improvement or development of property or assets
used or held by the Company or any Principal Subsidiary or within one year
after such time to secure all or a portion of the purchase price for, or
the costs of improvement or development of, such property or assets;
(j) any Lien upon any property or assets existing thereon at the time
of the acquisition thereof by the Company or any Principal Subsidiary
(whether or not the obligations secured thereby are assumed by the Company
or any Principal Subsidiary);
(k) any Lien in favor of the Company or any Principal Subsidiary;
17
(l) any Lien created or assumed by the Company or any Principal
Subsidiary in connection with the issuance of debt securities the interest
on which is excludable from gross income of the holder of such security
pursuant to the Code, as amended, for the purpose of financing, in whole or
in part, the acquisition, purchase, improvement or development of property
or assets to be used or held by the Company or any Principal Subsidiary;
(m) any Lien securing any Indebtedness in an amount which, together
with (i) all other Indebtedness secured by a Lien that is not otherwise
permitted by the provisions of this Section 3.6, and (ii) all Attributable
Debt of the Company and its Subsidiaries with respect to Sale and Leaseback
Transactions permitted only under Section 3.7(e), that does not at the time
of the incurrence of the Indebtedness so secured exceed 10% of the
Company's Consolidated Net Tangible Assets; or
(n) any extension, renewal or refunding of any Lien referred to in the
foregoing clauses (f) through (m), inclusive, on substantially the same
property or assets theretofore subject thereto.
In case the Company or any Subsidiary shall propose to pledge, mortgage,
hypothecate or grant a security interest in any property or assets owned by the
Company or any Principal Subsidiary to secure any Indebtedness other than as
permitted by subdivisions (a) to (n), inclusive, of this Section 3.6, the
Company will prior thereto give written notice thereof to the Trustee, and the
Company will, or will cause such Principal Subsidiary to, prior to or
simultaneously with such Lien by supplemental indenture executed to the Trustee
(or to the extent legally necessary to another trustee or additional or separate
trustee), in form satisfactory to the Trustee, effectively secure (for so long
as such other Indebtedness shall be so secured) each Senior Note then
outstanding equally and ratably with such Indebtedness and with any other
indebtedness similarly entitled to be equally and ratably secured. Such
supplemental indenture shall contain the provisions concerning the possession,
control, release and substitution of mortgaged and pledged property and
securities and other appropriate matters which are required by the Trustee
Indenture Act of 1939 (as in effect at the date of execution of such
supplemental indenture) and may also contain such additional and amendatory
provisions permitted by the Trust Indenture Act of 1939 as the Company and the
Trustee shall deem advisable or appropriate or as the Trustee shall deem
necessary in connection with such pledge, mortgage, hypothecation or grant of
security interest.
For the purpose of this Section 3.6, the term "security interest" shall
include the interest of the lessor under a lease with a term of three years or
more that should be, in accordance with GAAP, recorded as a capital lease, and
any such lease of property or assets not acquired from the Company or any
Principal Subsidiary in contemplation of such lease shall be treated as though
the lessee had purchased such property or assets from the lessor.
SECTION 3.7. Limitation on Sale and Leaseback Transactions. So long
as any Senior Notes are outstanding, the Company will not enter into and will
not permit any Principal Subsidiary to enter into any Sale and Leaseback
Transaction with respect to any
18
property or assets owned by the Company or any Principal Subsidiary on the date
of this Indenture, unless (a) such Sale and Leaseback Transaction involves a
lease for a term of not more than three years; (b) such Sale and Leaseback
Transaction is between the Company and such Principal Subsidiary or between
Principal Subsidiaries; (c) the Company or such Principal Subsidiary would be
entitled to incur Indebtedness secured by a Lien on such property or assets
involved in such Sale and Leaseback Transaction at least equal in amount to the
Attributable Debt with respect to such Sale and Leaseback Transaction without
equally and ratably securing the Senior Notes pursuant to the covenant
concerning future Liens described in Section 3.6(m) above; (d) the cash proceeds
of such Sale and Leaseback Transaction are at least equal to the fair market
value thereof (as determined in good faith by the Board of Directors of the
Company) and the Company applies an amount equal to the greater of the net
proceeds of such sale or the Attributable Debt with respect to such Sale and
Leaseback Transaction within 180 days of such sale to either (or a combination
of) (i) the retirement (other than the mandatory retirement, mandatory
prepayment or sinking fund payment or by payment at maturity) of long-term debt
of the Company or a Subsidiary (other than long-term debt that is subordinated
to the Senior Notes) or (ii) the purchase, improvement or development of other
comparable property; or (e) any Sale and Leaseback Transaction in an amount
which, together with (i) all Attributable Debt of the Company and its
Subsidiaries with respect to Sale and Leaseback Transactions not otherwise
permitted under clauses (a) through (d) above, and (ii) all other Indebtedness
secured by a Lien permitted only under clause (m) of Section 3.6, that does not
at the time of such transaction exceed 10% of Consolidated Net Tangible Assets.
SECTION 3.8. Compliance Certificate. The Company shall deliver to
the Trustee within 90 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 3.9. Further Instruments and Acts. 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 or as may be reasonably requested by the Trustee.
SECTION 3.10. Reports by the Company to the Holders. The Company
covenants and agrees to transmit by mail to (i) the Holders as their names and
addresses appear on the Senior Note register maintained by the Registrar, (ii)
such Holders of Senior Notes, within the two years preceding the transmission,
as have filed their names and addresses for such purpose and (iii) to all
Holders whose names and addresses have been furnished to or received by the
Trustee pursuant to Section 2.5, within 120 days after the end of each fiscal
year of the Company, copies of audited financial statements, on a consolidated
basis, if applicable, including balance sheets, statements of operations,
statements of
19
shareholders' equity and statements of changes in financial position, together
with respective reports of independent certified accountants relating thereto.
ARTICLE IV
Successor Company
SECTION 4.1. When Company May Merge or Transfer Assets. The Company
shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") is a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
the Successor Company (if not the Company) expressly assumes by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, all the obligations of the
Company under the Senior Notes and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary of the Successor Company as a result of such
transaction as having been incurred by the Successor Company or such
Subsidiary at the time of such transaction), no Default shall have occurred
and be continuing; and
(iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
The Successor Company shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture, but in
the case of a lease of all or substantially all of the Company's assets, the
Company shall not be released from the obligation to pay the principal of and
interest on the Senior Notes.
Notwithstanding Section 4.1(ii) and 4.1(iii), (i) any Subsidiary of
the Company may consolidate with, merge into or transfer all or part of its
properties and assets to the Company or another Wholly-Owned Subsidiary of the
Company; and (ii) the Company may merge with an Affiliate incorporated solely
for the purpose of reincorporating the Company in another jurisdiction to
realize tax or other benefits.
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ARTICLE V
Defaults and Remedies
SECTION 5.1. Events of Default. An "Event of Default" occurs if:
(i) the Company defaults in any payment of interest on any
Senior Note when the same becomes due and payable and such default
continues for a period of 30 days;
(ii) the Company defaults in the payment of the principal of
any Senior Note when the same becomes due and payable at its Stated
Maturity, upon declaration or otherwise;
(iii) the Company fails to comply with Section 4.1;
(iv) the Company fails to comply with any of its agreements in
the Senior Notes or this Indenture (other than those referred to in (i),
(ii) or (iii) above) and such failure continues for 60 days after the
notice specified below;
(v) the Company or any Subsidiary fail to pay at maturity at
least $20 million (or its foreign currency equivalent at the time)
aggregate principal amount of Indebtedness at any one time, and such
failure continues for 15 days after notice delivered thereunder;
(vi) any default or event of default under any Indebtedness of
the Company or any Subsidiary (other than any indebtedness of the Company
or any Subsidiary to the seller of a business or asset incurred in
connection with the purchase thereof), which default or event of default
results in at least $20 million (or its foreign currency equivalent at the
time) aggregate principal amount of such Indebtedness being declared due
and payable prior to maturity;
(vii) the Company or a Subsidiary pursuant to or within the meaning
of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency; or
21
(viii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Subsidiary in an
involuntary case;
(B) appoints a Custodian of the Company or any Subsidiary or for
any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any
Subsidiary;
or any similar relief is granted under any foreign laws and the order,
decree or relief remains unstayed and in effect for 60 days.
The foregoing 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 Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
Notwithstanding the foregoing, a Default under Section 5.1(iv) will
not constitute an Event of Default until the Trustee or the Holders of at least
25% in principal amount of the outstanding Senior Notes notify the Company of
the Default and the Company does not cure such Default within the time specified
in said clause (iv) after receipt of such notice. Such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default."
The Company shall deliver to the Trustee: (i) within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (vi) and any event which with the giving of
notice or the lapse of time would become an Event of Default under clause (iv)
or (viii), its status and what action the Company is taking or proposes to take
with respect thereto; and (ii) within 120 days after the end of each fiscal
year, written notice in the form of an Officer's Certificate indicating whether
the Officers signing such Officer's Certificate knew or were aware of any
Default that occurred during such previous fiscal year.
SECTION 5.2. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 5.1(vii) or (viii) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in outstanding principal amount of the Senior Notes by
notice to the Company and the Trustee, may declare the principal of and accrued
and unpaid interest on all the Senior Notes to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable
22
immediately. If an Event of Default specified in Section 5.1(vii) or (viii)
with respect to the Company occurs and is continuing, the principal of and
accrued and unpaid interest on all the Senior Notes shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holders. The Holders of a majority in principal amount of
the Senior Notes by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or Event
of Default or impair any right consequent thereto.
SECTION 5.3. 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 Senior Notes or to enforce the performance of
any provision of the Senior Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Senior Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 5.4. Waiver of Past Defaults. The Holders of a majority in
outstanding principal amount of the Senior Notes by notice to the Trustee may
waive an existing Default or Event of Default and its consequences except (i) a
Default or Event of Default in the payment of the principal of or interest on a
Senior Note or (ii) a Default or Event of Default in respect of a provision that
under Section 8.2 cannot be amended without the consent of each Holder affected.
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.
SECTION 5.5. Control by Majority. The Holders of a majority in
outstanding principal amount of the Senior Notes 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 6.1, that the Trustee reasonably determines is unduly
prejudicial to the rights of other Holders (it being understood that, subject to
Section 6.1, the Trustee shall have no duty to ascertain whether or not such
actions or forebearances are unduly prejudicial to such Holders) or would
involve the Trustee in personal liability; provided, however, that the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction. Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.
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SECTION 5.6. Limitation on Suits. Except to enforce the right to
receive payment of principal or interest when due, a Holder may not pursue any
remedy with respect to this Indenture or the Senior Notes unless:
(i) the Holder gives to the Trustee written notice stating that
an Event of Default is continuing;
(ii) the Holders of at least 25% in outstanding principal
amount of the Senior Notes make a written request to the Trustee to pursue
the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or indemnity;
and
(v) the Holders of a majority in principal amount of the Senior
Notes do not give the Trustee a direction that, in the opinion of the
Trustee, is inconsistent with the request during such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 5.7. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on the Senior Notes held by such Holder, on
or after the respective due dates expressed in the Senior Notes, 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 5.8. Collection Suit by Trustee. If an Event of Default
specified in Section 5.1(i) or (ii) 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
6.7.
SECTION 5.9. 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 and the Holders allowed in
any judicial proceedings relative to the Company, its Subsidiaries or their
respective creditors or properties and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the compensation,
24
expenses, disbursements and advances of the Trustee, its agents and its counsel,
and any other amounts due the Trustee under Section 6.7.
SECTION 5.10. Priorities. If the Trustee collects any money or
property pursuant to this Article V, it shall pay out the money or property in
the following order:
FIRST: Costs and expenses of collection, including all sums paid or
advanced by the Trustee hereunder and the compensation, expenses and
disbursements of the Trustee, its agents, and counsel and all other amounts
due to the Trustee under Section 6.7;
SECOND: to Holders for amounts due and unpaid on the Senior Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Senior Notes for
principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.10. At least 15 days before such record
date, the Company shall mail to each Holder and the Trustee a notice that states
the record date, the payment date and amount to be paid.
SECTION 5.11. 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 5.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 5.7 or a suit by Holders of more
than 10% in outstanding principal amount of the Senior Notes.
ARTICLE VI
Trustee
SECTION 6.1. 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
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default: (i) 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
25
Trustee; and (ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that: (i) this paragraph does not limit the effect of Section 6.1(b);
(ii) 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 (iii) 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 5.5.
(d) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
(e) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 6.1 and to the provisions of the TIA.
SECTION 6.2. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed in good
faith.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
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(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the Senior
Notes 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) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
Officer's Certificate, or other certificated statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in writing
so to do by the Holders of not less than a majority in aggregate principal
amount of the Senior Notes then outstanding; provided that, if the payment
within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination shall be paid by
the Company or, if advanced by the Trustee, shall be repaid by the Company upon
demand.
(g) The Trustee shall not be required to give any bond or surety in
respect of the performance of its power and duties hereunder.
(h) The Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions, or agreements on the
part of the Company, except as otherwise set forth herein, but the Trustee may
require of the Company full information and advice as to the performance of the
covenants, conditions and agreements contained herein and shall be entitled in
connection herewith to make a reasonable examination in scope and time of the
books, records and premises of the Company.
(i) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful default.
(j) Except for (i) a default under Sections 5.1(i) or (ii) hereof, or
(ii) any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not be
deemed to have notice of any default or event unless specifically notified in
writing of such event by the Company or the Holders of not less than 25% in
aggregate principal amount of the Senior Notes outstanding; as used in this
Article VI, the term "actual knowledge" means the actual fact or state of
knowing by a Trust Officer, without any duty to make any investigation with
regard thereto.
SECTION 6.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Senior Notes
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee.
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Any Paying Agent, Registrar, co-registrar or co-paying agent may do the same
with like rights. However, the Trustee must comply with Sections 6.10 and 6.11.
SECTION 6.4. 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 Senior Notes, it shall not be accountable for the
Company's use of the proceeds from the Senior Notes, it shall not be responsible
for the use or application of any money received by any Paying Agent (other than
itself as Paying Agent), and it shall not be responsible for any statement of
the Company in this Indenture or in any document issued in connection with the
sale of the Senior Notes or in the Senior Notes other than the Trustee's
certificate of authentication.
SECTION 6.5. 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 Holder notice of the Default or Event of Default
within 60 days after it occurs. Except in the case of a Default or Event of
Default in payment of principal of, or interest on, any Senior Note, the Trustee
may withhold the notice if and so long as its board of directors, the Executive
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 Noteholders.
SECTION 6.6. 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 Holder a brief report dated as of such May 15 that complies
with TIA (S) 313(a). The Trustee also shall comply with TIA (S) 313(b). The
Trustee shall also transmit by mail all reports required by TIA (S) 313(c).
A copy of each report at the time of its mailing to Holders shall be
filed by the Company with the SEC and each stock exchange (if any) on which the
Senior Notes are listed. The Company agrees to notify promptly the Trustee
whenever the Senior Notes become listed on any stock exchange and of any
delisting thereof.
SECTION 6.7. Compensation and Indemnity. The Company shall pay to
the Trustee from time to time, and the Trustee shall be entitled to,
compensation for its services as set forth in a separate fee agreement between
the Trustee and the Company. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, costs of preparing and
reviewing reports, certificates and other documents, costs of preparation and
mailing of notices to Holders and reasonable costs of counsel retained by the
Trustee in addition to the compensation for its services. Such expenses shall
include the reasonable compensation and expenses, disbursements and advances of
the Trustee's agents, counsel, accountants and experts. The Company shall
indemnify and hold harmless the Trustee against any and all loss, liability or
expense (including reasonable attorneys' fees) incurred by it in connection with
the administration of this trust and the performance of its duties hereunder,
including the costs and expenses of enforcing this Indenture (including this
Section 6.7) and of defending itself against any claims (whether asserted by any
Holder, the Company or otherwise). The
28
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder. The Company shall defend the claim
and the Trustee may have separate counsel and the Company shall pay the fees and
expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own wilful misconduct or negligence.
To secure the Company's payment obligations in this Section 6.7, the
Trustee shall have a lien prior to the Senior Notes 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 Senior Notes. The Trustee's right
to receive payment of any amounts due under this Section 6.7 shall not be
subordinate to any other liability or indebtedness of the Company.
The Company's payment obligations pursuant to this Section 6.7 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 5.1(vii) or (viii) with respect
to the Company, the expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 6.8. Replacement of Trustee. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in outstanding
principal amount of the Senior Notes may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if: (i) the Trustee fails to comply with Section 6.10; (ii) the Trustee
is adjudged bankrupt or insolvent; (iii) a receiver or other public officer
takes charge of the Trustee or its property; or (iv) 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 outstanding principal amount of the Senior Notes and such
Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy
exists in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to the Holders. 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 6.7.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in outstanding principal amount of the Senior Notes may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
29
If the Trustee fails to comply with Section 6.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section 6.8, the Company's obligations under Section 6.7 shall continue for the
benefit of the retiring Trustee.
SECTION 6.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
If at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture, any of the Senior Notes 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 Senior Notes so
authenticated; and if at that time any of the Senior Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Senior Notes
either in the name of any predecessor hereunder or in the name of the successor
to the Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Senior Notes or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 6.10. 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 $400 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 6.11. 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 VII
Discharge of Indenture; Defeasance
SECTION 7.1. Discharge of Liability on Senior Notes; Defeasance. (a)
When the Company delivers to the Trustee all outstanding Senior Notes (other
than Senior Notes replaced pursuant to Section 2.7) for cancellation, and the
Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 7.1(c), cease to be of further effect. The
Trustee shall acknowledge satisfaction and discharge of this Indenture on demand
of the Company (accompanied by an Officers' Certificate and an
30
Opinion of Counsel stating that all conditions precedent specified herein
relating to the satisfaction and discharge of this Indenture have been complied
with) and at the cost and expense of the Company.
(b) Subject to Sections 7.1(c) and 7.2, the Company at any time may
terminate (i) all its obligations under the Senior Notes and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 3.2 through
3.7, and the operation of Sections 5.1(iii), 5.1(iv), 5.1(v) and 5.1(vi),
5.1(vii) (but only with respect to a Subsidiary), 5.1(viii) (but only with
respect to a Subsidiary) and 5.1(ix) ("covenant defeasance option"); provided,
however, no deposit under this Article VII shall be effective to terminate the
obligations of the Company under the Senior Notes or this Indenture prior to 91
days following any such deposit. The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Senior Notes may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Senior Notes
may not be accelerated because of an Event of Default specified in Sections
5.1(iii), 5.1(v), 5.1(vi), 5.1(vii) (but only with respect to a Subsidiary) or
5.1(viii) (but only with respect to a Subsidiary).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 7.1(a) and (b), the
Company's obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7, 6.7, 6.8, 7.4, 7.5
and 7.6 shall survive until the Senior Notes have been paid in full.
Thereafter, the Company's obligations in Sections 6.7, 7.4 and 7.5 shall
survive.
SECTION 7.2. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(i) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal of and
interest on the Senior Notes to maturity;
(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment of the deposited U.S. Government Obligations plus any
deposited money without reinvestment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Senior Notes to maturity;
(iii) (A) no Event of Default (excluding a Default or Event of
Default arising from breach of Section 3.3 as a result of the creation of a
Lien in connection with the incurrence of Indebtedness the proceeds of
which are applied to such deposit)
31
shall have occurred or be continuing on the date of such deposit and (B) 91
days pass after the deposit is made and during the 91-day period no Default
specified in Section 5.1(vii) or 5.1(viii) with respect to the Company
occurs which is continuing at the end of such period;
(iv) the deposit does not constitute a default under any other
agreement binding on the Company;
(v) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under the
Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (B) since the date hereof there has been a
change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such legal defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the 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 Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred;
(viii) the Holders shall have a perfected security interest
under applicable law in the cash or U.S. Government Obligations deposited
pursuant to Section 7.2(i) above;
(ix) the Company shall have delivered to the Trustee an Opinion
of Counsel, in form and substance reasonably satisfactory to the Trustee,
to the effect that, after the passage of 91 days following the deposit, the
trust funds will not be subject to any applicable bankruptcy, insolvency,
reorganization or similar law affecting creditors' rights generally;
(x) such defeasance shall not cause the Trustee to have a
conflicting interest with respect to any securities of the Company; and
(xi) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Senior Notes and this
Indenture as contemplated by this Article VII have been complied with.
32
SECTION 7.3. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article VII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Senior Notes.
SECTION 7.4. Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money or
securities held by them upon payment of all the obligations under this
Indenture.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal of or interest on the Senior Notes that remains
unclaimed for two years, and, thereafter, Holders entitled to the money must
look to the Company for payment as general creditors.
SECTION 7.5. Indemnity for U.S. Government Obligations. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 7.6. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article VII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the Company under
this Indenture and the Senior Notes shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VII until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VII; provided, however, that, if the
Company has made any payment of interest on or principal of any Senior Notes
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Senior Notes to receive such payment from
the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE VIII
Amendments
SECTION 8.1. Without Consent of Holders. The Company and the Trustee
may amend this Indenture or the Senior Notes without notice to or consent of any
Holder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article IV;
33
(iii) to provide for uncertificated Senior Notes in addition
to or in place of certificated Senior Notes; provided, however, that the
uncertificated Senior Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Senior Notes are described in Section 163(f)(2)(B) of the Code;
(iv) 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;
(v) to comply with any requirement of the SEC in connection
with qualifying this Indenture under the TIA; or
(vi) to make any change that does not adversely affect the
rights of any Holder.
After an amendment under this Section 8.1 becomes effective, the
Company shall mail to each Holder a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 8.1.
SECTION 8.2. With Consent of Holders. The Company and the Trustee
may amend this Indenture or the Senior Notes with the written consent of the
Holders of at least a majority in principal amount of the outstanding Senior
Notes. However, without the consent of each Holder affected, an amendment may
not:
(i) reduce the amount of Senior Notes whose Holders must
consent to an amendment;
(ii) reduce the rate of or extend the time for payment of
interest on any Senior Note;
(iii) reduce the principal of or extend the Stated Maturity of
any Senior Note;
(iv) make any Senior Note payable in money other than that
stated in the Senior Note;
(v) modify or affect in any manner adverse to the Holders the
terms and conditions of the obligation of the Company for the due and
punctual payment of the principal of or interest on Senior Notes; or
(vi) make any change in Section 5.4 or 5.7 or the second
sentence of this Section 8.2.
34
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment under this Section 8.2 becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 8.2.
SECTION 8.3. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Senior Notes shall comply with the TIA as then in effect.
SECTION 8.4. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Senior Note shall bind the
Holder and every subsequent Holder of that Senior Note or portion of the Senior
Note that evidences the same debt as the consenting Holder's Senior Note, even
if notation of the consent or waiver is not made on the Senior Note. However,
any such Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Senior Note or portion of the Senior Note if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
After an amendment or waiver becomes effective, it shall bind every Holder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to give their consent or take
any other action described above or required or permitted to be taken pursuant
to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall become valid or effective more than 120
days after such record date.
SECTION 8.5. Notation on or Exchange of Senior Notes. If an
amendment changes the terms of a Senior Note, the Trustee may require the Holder
of the Senior Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Senior Note 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 Senior Note shall issue and the Trustee shall
authenticate a new Senior Note that reflects the changed terms. Failure to make
the appropriate notation or to issue a new Senior Note shall not affect the
validity of such amendment.
SECTION 8.6. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article VIII 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 6.1) 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.
35
ARTICLE IX
Miscellaneous
SECTION 9.1. 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.
SECTION 9.2. 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:
Xxxxxx International Industries, Incorporated
0000 Xxxxxxxxxxxx Xxxxxx X.X.
Xxxxx 0000
Xxxxxxxxxx X.X. 00000
Attention: Xxxxx Xxxxxxxx
if to the Trustee:
PNC Bank, National Association
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration.
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to the
Holder at the Holder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 9.3. Communication by Holders with other Holders. Holders
may communicate pursuant to TIA (S) 312(b) with other Holders with respect to
their rights under this Indenture or the Senior Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA (S)
312(c).
36
SECTION 9.4. 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, if requested,
furnish to the Trustee: (i) 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 (ii) 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.
SECTION 9.5. 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: (i) a statement that the
individual making such certificate or opinion has read such covenant or
condition; (ii) 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; (iii) 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 (iv) a statement as to whether or not, in
the opinion of such individual, such covenant or condition has been complied
with.
SECTION 9.6. When Senior Notes Disregarded. In determining whether
the Holders of the required principal amount of Senior Notes have concurred in
any direction, waiver or consent, Senior Notes 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
Senior Notes which the Trustee knows are so owned shall be so disregarded.
Also, subject to the foregoing, only Senior Notes outstanding at the time shall
be considered in any such determination.
SECTION 9.7. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 9.8. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in the
State of New York or in the Commonwealth of Pennsylvania. 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 9.9. Governing Law. This Indenture and the Senior Notes
shall be governed by, and construed and interpreted in accordance with, the laws
of the State of New York.
37
SECTION 9.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Senior Notes or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Senior Note, each Holder shall waive and release all
such liability. The waiver and release shall be part of the consideration for
the issue of the Senior Notes.
SECTION 9.11. Successors. All agreements of the Company in this
Indenture and the Senior Notes shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 9.12. 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 9.13. Variable Provisions. The Company initially appoints
the Trustee as Paying Agent and Registrar and custodian with respect to any
Global Notes.
SECTION 9.14. 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.
38
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
XXXXXX INTERNATIONAL INDUSTRIES, INCORPORATED
By: ______________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as Trustee
By: ______________________________
Name:
Title:
Schedule 3.6(f) to
Indenture
EXISTING LIENS
EXHIBIT A to
Indenture
[FORM OF FACE OF SENIOR NOTE]
[Global Notes Legend]
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
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 NOTE 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 NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
No. 1 Principal Amount $150,000,000
CUSIP NO. _______________
[ ]% Senior Note due 2007
Xxxxxx International Industries, Incorporated, a Delaware corporation,
promises to pay to CEDE & CO., or registered assigns, the principal sum of One
Hundred Fifty Million Dollars on _______________, 2007.
Interest Payment Dates: ______________ and _______________ or each
year, commencing ______________, 1998.
Record Dates: ______________ and ___________.
2
Additional provisions of this Senior Note are set forth on the other
side of this Senior Note.
Dated: XXXXXX INTERNATIONAL INDUSTRIES,
INCORPORATED
by
-----------------------------------
[SEAL]
---------------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
PNC BANK, NATIONAL ASSOCIATION
as Trustee, certifies
that this is one of
the Senior Notes referred
to in the Indenture.
by
-----------------------------------
Authorized Signatory
[FORM OF REVERSE SIDE OF Senior Note]
[ ]% Senior Note due 2007
1. Interest
Xxxxxx International Industries, Incorporated, a Delaware corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Senior Note at the rate per annum shown
above.
The Company will pay interest semiannually on _________________ and
__________________ of each year, commencing _____________, 1998. Interest on
the Senior Notes will accrue from the most recent date to which interest has
been paid on the Senior Notes or, if no interest has been paid, from
______________, 1997. The Company shall pay interest on overdue principal and
interest, at the rate borne by the Senior Notes 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 Senior Note is due and payable, the Company
shall transfer by wire to the accounts specified by the Trustee or the Paying
Agent money sufficient to pay such principal and/or interest. The Company will
pay interest (except defaulted interest) to the Persons who are registered
Holders of Senior Notes at the close of business on the _______________ or
_________________ next preceding the interest payment date even if Senior Notes
are cancelled after the record date and on or before the interest payment date.
Holders must surrender Senior Notes 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. However, the Company may pay principal and interest by check
payable in such money. It may mail an interest check to a Holder's registered
address.
3. Paying Agent and Registrar
Initially, PNC Bank, National Association, a banking association
("Trustee"), will act as Paying Agent and Registrar. The Company may appoint
and change any Paying Agent, Registrar or co-registrar without notice to any
Noteholder. The Company or any of its domestically incorporated Wholly-Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
2
4. Indenture
The Company issued the Senior Notes under an Indenture dated as of
_____________, 1997 (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 Senior Notes 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 Senior Notes are subject to all
such terms, and Noteholders are referred to the Indenture and the Act for a
statement of those terms.
The Senior Notes are general unsecured unsubordinated obligations of
the Company limited to $150,000,000 aggregate principal amount (subject to
Section 2.7 of the Indenture). This Senior Note is one of the Senior Notes
referred to in the Indenture. The Indenture imposes certain limitations on the
creation and existence of liens, sale and leaseback transactions and mergers,
consolidations and transfers of all or substantially all of the Company's
assets.
5. Denominations; Transfer; Exchange
The Senior Notes 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 Senior Notes 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 Senior Notes for a period beginning 15 days before an interest
payment date and ending on such interest payment date.
6. Persons Deemed Owners
The registered holder of this Senior Note may be treated as the owner
of it for all purposes.
7. 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.
3
8. 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 Senior Notes
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 Senior
Notes to maturity.
9. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Senior Notes may be amended with the written consent of the
Holders of at least a majority in outstanding principal amount of the Senior
Notes and (ii) any default or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in outstanding principal
amount of the Senior Notes. Subject to certain exceptions set forth in the
Indenture, without the consent of any Noteholder, the Company and the Trustee
may amend the Indenture or the Senior Notes to cure any ambiguity, omission,
defect or inconsistency, or to comply with Article 4 of the Indenture, or to
provide for uncertificated Senior Notes in addition to or in place of
certificated Senior Notes, or to add additional covenants for the benefit of the
Holders or surrender rights and powers conferred on the Company, or to make any
change that does not adversely affect the rights of any Noteholder.
10. Defaults and Remedies
Under the Indenture, Events of Default include: (i) default for 30
days in payment of interest on the Senior Notes when the same becomes due and
payable; (ii) default in payment of principal on the Senior Notes when the same
becomes due and payable at maturity, upon declaration or otherwise; (iii)
failure by the Company to comply with other agreements in the Indenture or the
Senior Notes, in certain cases subject to notice and lapse of time; (iv) failure
to pay other Indebtedness of the Company or any of its Subsidiaries, if the
amount unpaid exceeds $20 million and such failure to pay is not cured within 15
days; (v) certain accelerations of other Indebtedness of the Company or any of
its Subsidiaries, if the amount accelerated exceeds $20 million; (vi) certain
events of bankruptcy or insolvency with respect to the Company or any
Subsidiary; and (vii) failure to comply with the limitations on mergers and
consolidations. If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the Senior Notes may declare
all the Senior Notes to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default which will result in the Senior
Notes being due and payable immediately upon the occurrence of such Events of
Default.
Noteholders may not enforce the Indenture or the Senior Notes except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Senior Notes unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in principal amount of the
Senior Notes may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Noteholders notice of any
4
continuing Default or Event of Default (except a Default or Event of Default in
payment of principal or interest) if it determines that withholding notice is in
their interest.
11. 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 Senior Notes 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.
12. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Senior
Notes or the Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Senior Note, each Noteholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Senior Notes.
13. Authentication
This Senior Note 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 Senior Note.
14. Abbreviations
Customary abbreviations may be used in the name of a Noteholder 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).
15. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Senior Note Identification Procedures the Company has caused CUSIP numbers to be
printed on the Senior Notes. No representation is made as to the accuracy of
such numbers either as printed on the Senior Notes and reliance may be placed
only on the other identification numbers placed thereon.
5
16. Governing Law
This Senior Note shall be governed by, and construed and interpreted
in accordance with, the laws of the State of New York.
The Company will furnish to any Noteholder upon written
request and without charge to the Noteholder a copy of the Indenture
which has in it the text of this Senior Note in larger type. Requests
may be made to: Xxxxxx International Industries, Incorporated, 0000
Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxxxxx X.X. 00000,
Attention: Xxxxx Xxxxxxxx.
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below:
I or we assign and transfer this Senior Note 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 Senior Note
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 Senior Note.
2
[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:
Date of Amount of decrease in Amount of increase in Principal Amount of this Signature of authorized
Exchange Principal Amount of this Principal Amount of this Global Senior Note following officer
Global Senior Note Global Senior Note such decrease or increase of Trustee or Senior Notes
Custodian
