Contract
Exhibit 4.3
This security is a global security within the meaning of the Indenture hereinafter referred to
and is registered in the name of a depositary or a nominee thereof. This security may not be
transferred to, or registered or exchanged for securities registered in the name of, any person
other than the depositary or a nominee thereof and no such transfer may be registered, except in
the limited circumstances described in the indenture.
Every security authenticated and delivered upon registration of, transfer of, or in exchange for or
in lieu of, this security shall be a global security subject to the foregoing, except in such
limited circumstances.
Unless this security is presented by an authorized representative of the Depository Trust Company,
a New York corporation, to the Company or its agent for registration of transfer, exchange or
payment, and any security issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of the Depository Trust Company (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized representative of the
Depository Trust Company), any transfer, pledge or other use hereof for value or otherwise by or to
any person is wrongful since the registered owner hereof, Cede & Co., has an interest herein.
XXXXXXXXXXX INTERNATIONAL LTD.
6.50% SENIOR NOTES DUE 2036
NO. 2
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U.S.$100,000,000 | |
CUSIP No. 947075 AB 3 |
XXXXXXXXXXX INTERNATIONAL LTD., a company duly incorporated under the laws of Bermuda (herein
called the “Company”, which term includes any successor or resulting Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of ONE HUNDRED MILLION United States Dollars on August 1, 2036, and to
pay interest thereon from August 7, 2006, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on February 1 and August 1 in each year,
commencing February 1, 2007, at the rate of 6.50% per annum, until the principal hereof is paid or
made available for payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be January 15 or July 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made
by transfer of immediately available funds to a bank account in New York, New York designated by
the Holder in such coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: August 7, 2006.
| XXXXXXXXXXX INTERNATIONAL LTD. | ||||
| By: | ||||
| Name: Xxxx X. Xxxxxxxxx | ||||
| Title: Senior Vice President and Chief Financial Officer |
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This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee |
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| By: | ||||
| Authorized Signatory | ||||
XXXXXXXXXXX INTERNATIONAL LTD.
6.50% SENIOR NOTES DUE 2036
6.50% SENIOR NOTES DUE 2036
This Security is one of a duly authorized issue of senior securities of the Company (herein
called the “Securities”), issued and to be issued in one or more series under an Indenture dated as
of October 1, 2003 (herein called the “Indenture”), among the Company, the Guarantor and Deutsche
Bank Trust Company Americas, as Trustee (herein called the “Trustee”, which term includes any
successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. As provided in the Indenture, the Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may mature at different
times, may bear interest, if any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may
be subject to different covenants and Events of Default and may otherwise vary as in the Indenture
provided or permitted. This Security is one of the series designated on the face hereof.
This Security is the general, unsecured, senior obligation of the Company and is initially
guaranteed pursuant to a guarantee (the “Guarantee”) by Xxxxxxxxxxx International, Inc., a Delaware
corporation (the “Guarantor”). The Guarantee is the general, unsecured, senior obligation of the
Guarantor. At such time as the Guarantor has no outstanding Debt (exclusive of (a) Debt owed to
the Company or any subsidiary of the Company and (b) any guarantee that has a provision
substantially similar to this provision such that by its terms it will be automatically released
and discharged simultaneously with the release and discharge of the Guarantee), the Guarantee shall
be terminated, and Article Fourteen of the Indenture shall not apply to the Notes; provided that if
the Guarantor subsequently incurs any Debt (exclusive of Debt owed to the Company or any subsidiary
of the Company), the Guarantee shall automatically be reinstated while any such Debt is
outstanding. In connection with each such reinstatement, the Guarantor will promptly execute and
deliver and cause to be executed and delivered to the Trustee any and all certificates, opinions,
instruments, agreements and documents, and to take all such other actions, that may be requested by
or on behalf of the Trustee to better evidence the reinstatement of the Guarantee and the
Guarantor’s obligations set forth under Article Fourteen of the Indenture; provided however, that
neither the failure or delay of the Trustee to request any such certificates, opinions,
instruments, agreements or documents nor the failure of the Guarantor to execute or deliver or the
delay in the execution or delivery of any of same will in any manner whatsoever reduce, diminish,
delay or otherwise alter the Guarantor’s obligations under the Guarantee, or prejudice, impair or
otherwise adversely effect the rights, benefits or remedies of the Trustee or any Holders under or
with respect to the Guarantee, which Guarantee in each case shall automatically arise and be in
effect upon the Guarantor incurring any Debt (exclusive of Debt owed to the Company or any
Subsidiary), without the necessity of any further act or deed.
The Securities of this series are subject to redemption upon not less than 30 nor more than 60
days’ notice by mail, at any time, as a whole or in part, at the election of the Company at a
Redemption Price equal to the greater of: (a) 100% of the principal amount of notes then
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outstanding to be redeemed, plus accrued and unpaid interest thereon to the redemption date;
or (b) the sum of the present values of the remaining scheduled payments of principal and interest
on the notes then outstanding to be redeemed (not including any portion of such payments of
interest accrued as of the redemption date) discounted to the redemption date on a semi-annual
basis (computed based on a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate, plus 25 basis points (0.25%), as calculated by an Independent Investment Banker,
plus accrued and unpaid interest thereon to the Redemption Date; but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the Indenture.
“Adjusted Treasury Rate” means, with respect to any redemption date: (a) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the remaining life, as defined below,
yields for the two published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Adjusted Treasury Rate will be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month); or (b) if such release (or any
successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption
date. The Adjusted Treasury Rate will be calculated on the third business day preceding the
redemption date.
“Comparable Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the notes to
be redeemed that would be used, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such notes.
“Comparable Treasury Price” means (1) the average of five Reference Treasury Dealer Quotations
for the redemption date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if an Independent Investment Banker obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
“Independent Investment Banker” means Banc of America Securities LLC, Xxxxxx Xxxxxxx & Co.
Incorporated or UBS Securities LLC or any of their respective successors, as designated by us, or
if all such firms are unwilling or unable to serve as such, an independent investment and banking
institution of national standing appointed by the Company.
“Reference Treasury Dealer” means: (a) Banc of America Securities LLC, Xxxxxx Xxxxxxx & Co.
Incorporated and UBS Securities LLC and each of their respective successors; provided that, if any
such Reference Treasury Dealer ceases to be a primary U.S. Government securities dealer in the
United States (Primary Treasury Dealer), we will substitute another
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Primary Treasury Dealer; and (b) up to two other Primary Treasury Dealer selected by the
Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by an Independent Investment Banker, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to an Independent Investment Banker at 5:00 p.m., New York City
time, on the third business day preceding such redemption date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantor and the rights of
the Holders of the Securities of each series to be affected under the Indenture at any time by the
Company and the Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and premium, if any) and interest on this Security at the times, place(s) and
rate, and in the coin or currency, herein prescribed. This Global Security or portion hereof may
not be exchanged for Definitive Securities of this series except in the limited circumstances
provided in the Indenture.
The holders of beneficial interests in this Global Security will not be entitled to receive
physical delivery of Definitive Securities except as described in the Indenture and will not be
considered the Holders thereof for any purpose under the Indenture.
The Securities of this series are issuable only in registered form without coupons in
denominations of U.S. $1,000 and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
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No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all purposes, whether or
not this Security be overdue, and none of the Company, the Guarantor, the Trustee nor any such
agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of or contained in the
Indenture or of or contained in any Security, or the Guarantee endorsed thereon, or for any claim
based thereon or otherwise in respect thereof, or in any Security or in the Guarantee, or because
of the creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, member, officer, manager or director, as such, past, present or future, of the Company
or the Guarantor or of any successor Person, either directly or through the Company or the
Guarantor or any successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment, penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released by the acceptance hereof and as a
condition of, and as part of the consideration for, the Securities and the execution of the
Indenture.
The Indenture provides that the Company and the Guarantor (a) will be discharged from any and
all obligations in respect of the Securities (except for certain obligations described in the
Indenture), or (b) need not comply with certain restrictive covenants of the Indenture, in each
case if the Company or the Guarantor deposits, in trust, with the Trustee money or U.S. Government
Obligations (or a combination thereof) which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, in an amount sufficient to pay all the
principal of and interest on the Securities, but such money need not be segregated from other funds
except to the extent required by law.
Except as otherwise defined herein, all terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
The Guarantor (which term includes any successor Person in such capacity under the Indenture),
has fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and all other amounts due and payable under the
Indenture and the Securities by the Company; provided that at such time as the Guarantor has no
outstanding Debt (exclusive of (a) Debt owed to the Company or any subsidiary of the Company and
(b) any guarantee that has a provision substantially similar to this provision such that by its
terms it will be automatically released and discharged simultaneously with the release and
discharge of the Guarantee), the Guarantee shall be terminated, and Article Fourteen of the
Indenture shall not apply to the Notes; provided further that if the Guarantor subsequently incurs
any Debt (exclusive of Debt owed to the Company or any subsidiary of the Company), the Guarantee
shall automatically be reinstated while any such Debt is outstanding. In connection with each such
reinstatement, the Guarantor will promptly execute and deliver and cause to be executed and
delivered to the Trustee any and all certificates, opinions, instruments,
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agreements and documents, and to take all such other actions, that may be requested by or on
behalf of the Trustee to better evidence the reinstatement of the Guarantee and the Guarantor’s
obligations set forth under Article Fourteen of the Indenture; provided however, that neither the
failure or delay of the Trustee to request any such certificates, opinions, instruments, agreements
or documents nor the failure of the Guarantor to execute or deliver or the delay in the execution
or delivery of any of same will in any manner whatsoever reduce, diminish, delay or otherwise alter
the Guarantor’s obligations under the Guarantee, or prejudice, impair or otherwise adversely effect
the rights, benefits or remedies of the Trustee or any Holders under or with respect to the
Guarantee, which Guarantee in each case shall automatically arise and be in effect upon the
Guarantor incurring any Debt (exclusive of Debt owed to the Company or any Subsidiary), without the
necessity of any further act or deed.
The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to
the Guarantee and the Indenture are expressly set forth in Article Fourteen of the Indenture as
limited hereby, and reference is hereby made to the Indenture for the precise terms of the
Guarantee.
| Guarantor: | ||||
| XXXXXXXXXXX INTERNATIONAL, INC. | ||||
| By: | ||||
| Name: Xxxx X. Xxxxxxxxx | ||||
| Title: Senior Vice President and Chief Financial Officer |
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