XXXXXX INDUSTRIES, INC.
XXXXXX INDUSTRIES, LTD.
AND
JPMORGAN CHASE BANK
AS TRUSTEE
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 28, 2002
DEBENTURES
SUPPLEMENT TO INDENTURE DATED AS OF JANUARY 15, 1990
AS AMENDED BY THE FIRST SUPPLEMENTAL
INDENTURE DATED AS OF MAY 15, 2002
AND THE SECOND SUPPLEMENTAL
INDENTURE DATED AS OF JUNE 21, 2002
This THIRD SUPPLEMENTAL INDENTURE, dated as of October 28, 2002 ("Supplemental
Indenture"), is made and entered into between Xxxxxx Industries, Inc., a
corporation organized and existing under the laws of the State of Ohio, having
its principal office at 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (the
"Company"), Xxxxxx Industries, Ltd., a Bermuda company, having its principal
office at 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (the "Guarantor") and
JPMorgan Chase Bank, a New York banking corporation, as Trustee (the "Trustee").
WHEREAS, the Company entered into an Indenture dated as of January 15, 1990 (the
"Indenture"), with The Chase Manhattan Bank (National Association), for the
purpose of issuing its debentures, notes, bonds or other evidences of
indebtedness (the "Debentures") in one or more series, unlimited as to aggregate
principal amount and bearing such rates of interest, if any, maturing at such
time or times and having such other designations as shall be fixed in accordance
with the Indenture; and
WHEREAS, the Company is a wholly owned, indirect subsidiary and a Restricted
Subsidiary of the Guarantor and, pursuant to the First Supplemental Indenture
among the parties hereto dated as of May 15, 2002, the Guarantor has guaranteed
to each holder of a Debenture the payment of the principal of, premium, if any,
and interest, if any, on the Debentures and all other obligations of the Company
under the Indenture; and
WHEREAS, the Trustee is the successor by merger to The Chase Manhattan Bank
(National Association) and has succeeded to all interests of such national
association under the Indenture; and
WHEREAS, the parties hereto have entered into a Second Supplemental Indenture
dated as of June 21, 2002; and
WHEREAS, the Company proposes to issue a series of Debentures in the aggregate
principal amount of up to three hundred million dollars $300,000,000 (the
"Notes") and to modify certain terms of the Indenture solely with respect to the
Notes and any Debentures that the Company issues subsequent to the Notes (the
"Subsequent Debentures"); and
WHEREAS, the entry into this Supplemental Indenture by the parties hereto is in
all respects permitted by the provisions of Section 11.01 of the Indenture; and
WHEREAS, all corporate and other action necessary to make this Supplemental
Indenture a valid and binding agreement of the Company and the Guarantor in
accordance with its terms have been done.
NOW, THEREFORE, in consideration of the foregoing premises and the acceptance
and purchase of the Notes by the holders thereof, it is mutually covenanted and
agreed as follows:
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SECTION 1. The Indenture is hereby amended, solely with respect to the Notes and
any Subsequent Debentures, by the addition of Section 4.04 as follows:
Section 4.04. Optional Redemption For Tax Reasons. The Company shall be
entitled to redeem all, but not part, of the Debentures if as a result of any
change in or amendment to the laws, regulations or rulings of the Relevant Tax
Jurisdiction or any change in the official application or interpretation of such
laws, regulations or rulings, or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties
affecting taxation to which such Relevant Tax Jurisdiction is a party (a "Change
in Tax Law"), the Payor is or would be required on the occasion of the next
payment of principal or interest in respect of the Debentures to pay Additional
Amounts pursuant to Section 5.09 and the payment of such Additional Amounts
cannot be avoided by the use of any reasonable measures available to the Payor.
The Change in Tax Law must become effective on or after the original issue date
with respect to the Debentures. Notwithstanding anything to the contrary
contained in this Article IV, the Company must (i) deliver to the trustee at
least 30 days before the redemption date an opinion of independent legal counsel
of recognized standing to the effect that the Payor has or will become obligated
to pay Additional Amounts as a result of such Change in Tax Law and (ii) provide
the holders with notice of the intended redemption at least 30 days and no more
than 60 days before the redemption date. The redemption price will equal the
principal amount of the Debentures plus accrued interest to the redemption date.
SECTION 2. The Indenture is hereby amended, solely with respect to the Notes and
any Subsequent Debentures, by adding to Section 1.01 thereof the following
definitions in correct alphabetical order:
Additional Amounts:
The term "Additional Amounts" shall have the meaning specified in
Section 5.09.
Change in Tax Law:
The term "Change in Tax Law" shall have the meaning specified in
Section 4.04.
Payor:
The term "Payor" shall have the meaning specified in Section 5.09.
Relevant Tax Jurisdiction:
The term "Relevant Tax Jurisdiction" shall have the meaning specified
in Section 5.09.
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SECTION 3. The Indenture is hereby amended, solely with respect to the Notes and
any Subsequent Debentures, by the addition of Section 5.09 as follows:
Section 5.09. Payment of Additional Amounts. If any taxes, assessments
or other governmental charges are imposed by the jurisdiction, other than the
United States, where the Guarantor or a successor (a "Payor") is organized or
otherwise considered to be a resident for tax purposes, any jurisdiction, other
than the United States, from or through which the Payor makes a payment on the
Debentures, or, in each case, any political organization or governmental
authority thereof or therein having the power to tax (the "Relevant Tax
Jurisdiction") in respect of any payments under the Debentures, the Payor shall
pay to each holder of a Debenture, to the extent it may lawfully do so, such
additional amounts ("Additional Amounts") as may be necessary in order that the
net amounts paid to such holder will be not less than the amount specified in
such Debenture to which such holder is entitled; provided, however, the Payor
shall not be required to make any payment of Additional Amounts for or on
account of:
(a) any tax, assessment or other governmental charge which would not
have been imposed but for (i) the existence of any present or former
connection between such holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of a power over,
such holder, if such holder is an estate, trust, partnership, limited
liability company or corporation) and the Relevant Tax Jurisdiction
including, without limitation, such holder (or such fiduciary, settlor,
beneficiary, member, shareholder or possessor) being or having been a
citizen or resident thereof or being or having been present or engaged
in trade or business therein or having or having had a permanent
establishment therein or (ii) the presentation of a Debenture (where
presentation is required) for payment on a date more than 30 days after
(x) the date on which such payment became due and payable or (y) the
date on which payment thereof is duly provided for, whichever occurs
later;
(b) any estate, inheritance, gift, sales, transfer, personal property
or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payment of (or in respect of)
principal of, premium, if any, or any interest on, the Debentures;
(d) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure by the holder or the beneficial owner
of the Debenture to comply with a request of the Payor addressed to the
holder to provide information, documents or other evidence concerning
the nationality, residence or identity of the holder or such beneficial
owner which is required by a statute, treaty, regulation or
administrative practice of the taxing jurisdiction as a precondition to
exemption from all or part of such tax, assessment or other
governmental charge; or
(e) any combination of the above;
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nor will Additional Amounts be paid with respect to any payment of the principal
of, or any premium or interest on, any Debenture to any holder who is a
fiduciary or partnership or limited liability company or other than the sole
beneficial owner of such payment to the extent such payment would be required by
the laws of the Relevant Tax Jurisdiction to be included in the income for tax
purposes of a beneficiary or settlor with respect to such fiduciary or a member
of such partnership, limited liability company or beneficial owner who would not
have been entitled to such Additional Amounts had it been the holder of such
Debenture.
The Payor shall provide the Trustee with the official acknowledgment of the
relevant tax authority (or, if such acknowledgment is not available, a certified
copy thereof) evidencing the payment of the withholding taxes by the Payor.
Copies of such documentation shall be made available to the holders of the
Debentures or the paying agent, as applicable, upon request therefor.
SECTION 4. The Indenture, as supplemented and amended by this Supplemental
Indenture and all other supplemental indentures thereto, is in all respects
ratified and confirmed, and the Indenture, the Supplemental Indenture and all
indentures supplemental thereto shall be read, taken and construed as one and
the same instrument; provided, however, that this Supplemental Indenture shall
apply only to the Notes and any Subsequent Debentures.
SECTION 5. If and to the extent any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in this
Supplemental Indenture by any provision of the Trust Indenture Act of 1939, such
required provision shall control.
SECTION 6. In case any provision in this Supplemental Indenture or in the
Debentures of any series shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions (or of the
other series of Debentures) shall not in any way be affected or impaired
thereby.
SECTION 7. If the provisions of the Notes or any series of the Subsequent
Debentures issued hereunder are inconsistent or conflict with the provisions of
this Supplemental Indenture, the provisions of the Notes or the Subsequent
Debentures of such series shall be controlling with respect to such series.
SECTION 8. This Supplemental Indenture and each Debenture of any series shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of the said State.
SECTION 9. Capitalized terms used in this Supplemental Indenture that are not
otherwise defined herein that are defined in the Indenture shall remain as set
forth therein.
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SECTION 10. This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original but such counterparts shall
together constitute but one and the same instrument.
SECTION 11. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Third Supplemental Indenture
or for or in respect of the recitals contained herein, all of which are made
solely by the Company and the Guarantor.
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IN WITNESS WHEREOF, the parties have caused this Third Supplemental Indenture to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, as of the day and year first above written.
COMPANY:
XXXXXX INDUSTRIES, INC. JPMORGAN CHASE BANK,
AS TRUSTEE
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------- ------------------------------
Name: Xxxx X. Xxxx Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer Assistant Vice President
GUARANTOR:
XXXXXX INDUSTRIES, LTD.
By: /s/ D. Xxxxxxx XxXxxxxxxx
----------------------------------
Name: D. Xxxxxxx XxXxxxxxxx
Title: Senior Vice President and Chief Financial Officer
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Vice President and Treasurer
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