1
EXHIBIT 4.4
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND
IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL
NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTES EVIDENCED HEREBY
RESELL OR OTHERWISE TRANSFER THE NOTES EVIDENCED HEREBY, EXCEPT (A) TO XXXXXX
INTERNATIONAL INC. (THE "COMPANY"), (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO U.S. TRUST COMPANY OF TEXAS, N.A., AS TRUSTEE, A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTES EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (D) OUTSIDE THE UNITED STATES TO
FOREIGN PURCHASERS IN OFFSHORE TRANSACTIONS MEETING THE REQUIREMENTS OF RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE EACH PERSON TO WHOM THE NOTES EVIDENCED HEREBY
ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE NOTES EVIDENCED HEREBY WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF SUCH NOTES, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO U.S. TRUST COMPANY OF TEXAS, N.A., AS TRUSTEE, A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTES EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM SUCH TRUSTEE). IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE COMPANY AND U.S. TRUST COMPANY OF TEXAS, N.A., AS TRANSFER
AGENT, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED AFTER THE
EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE NOTES EVIDENCED
HEREBY IF THE PROVISIONS OF SECTION 2.14(A)(I) OF THE INDENTURE ARE SATISFIED.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S.
PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE
SECURITIES ACT.
PAGE 1 OF 10 PAGES
GLOBAL SECURITY: R-2
ISSUER: Xxxxxx International Inc. ISSUE DATE: February 13, 1998
2
GLOBAL SECURITY
9 1/2% SENIOR NOTE DUE 2008, SERIES A
REGISTERED
No. R- U.S. $
CUSIP 23380G-AC-0
XXXXXX INTERNATIONAL INC.
(a Delaware corporation)
promises to pay Cede & Co. or registered assigns the principal sum of
_______________ ($____) on February 15, 2008.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.
XXXXXX INTERNATIONAL INC.
By:
-----------------------------------------------
XXXXX X. XXXX
President
Dated: February 13, 1998
Attest:
--------------------------------------------
XXXXXXX X. XXXXXX
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Dated: February 13, 0000
X.X. XXXXX XXXXXXX XX XXXXX, N.A.
By:
----------------------------------------
Authorized Signatory
PAGE 2 OF 10 PAGES
GLOBAL SECURITY: R-2
ISSUER: Xxxxxx International Inc. ISSUE DATE: February 13, 1998
3
1. Interest.
Xxxxxx International Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security
at 9 1/2% per annum from February 13, 1998 until maturity. The Company will
pay interest semiannually on February 15 and August 15 of each year, commencing
August 15, 1998, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the
Securities will accrue from the most recent date to which interest has been
paid or duly provided for or, if no interest has been paid, from the date of
original issuance; provided that if there is no existing Default or Event of
Default in the payment of interest, and if this Security is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date, except in the case of the original issuance of Securities, in
which case interest shall accrue from the date of authentication. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
Accrued but unpaid interest on any Series A Security that is exchanged for a
Series B Security pursuant to the Registration Rights Agreement shall be paid
on or before the first interest payment date on the Series B Securities.
The interest rate on the Securities is subject to increase under
certain circumstances described in the Registration Rights Agreement.
The Company shall pay interest on overdue principal of and interest on
overdue installments of interest, to the extent lawful, at a rate equal to the
rate of interest otherwise payable on the Securities.
2. Method of Payment.
The Company will pay interest on the Securities to the persons who are
registered holders of Securities at the close of business on the February 1 or
August 1 immediately preceding the interest payment date even though Securities
are cancelled after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal of and interest on the Securities in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. The Company may pay principal or interest
by check payable in such money or by wire transfer of immediately available
funds. If paying by check, the Company may mail such check to a Holder's
registered address.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-registrar without notice.
The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
4. Indenture and Guarantees.
The Company issued the Securities under an Indenture dated as of
February 13, 1998 (the "Indenture") among the Company, the Subsidiary
Guarantors and the Trustee. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of the Indenture or on the date of any
amendment thereto, to the extent required by Section 9.03 of the Indenture.
Notwithstanding anything to the contrary herein, the Securities are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Securities are general unsecured obligations
PAGE 3 OF 10 PAGES
GLOBAL SECURITY: R-2
ISSUER: Xxxxxx International Inc. ISSUE DATE: February 13, 1998
4
of the Company limited to $____________ aggregate principal amount in the case
of Securities issued on the Issue Date. Payment on each Security is guaranteed
on a senior unsecured basis, jointly and severally, by the Subsidiary
Guarantors pursuant to Article Ten of the Indenture.
5. Optional Redemption.
At any time or in part from time to time on and after February 15,
2003, the Company may, at its option, redeem all or any portion of the
Securities at the redemption prices (expressed as percentages of the principal
amount of the Securities) set forth below, plus, in each case, accrued interest
thereon to the applicable redemption date, if redeemed during the 12-month
period beginning on February 15 of the years indicated below:
Year Percentage
2003 . . . . . . . . 104.750
2004 . . . . . . . . 103.167%
2005 . . . . . . . . 101.583%
2006 and thereafter 100.000%
In addition, at any time or from time to time on or before February
15, 2001, up to 35% of the aggregate principal amount of Securities originally
issued may be redeemed, at the option of the Company, upon not less than 30 or
more than 60 days' notice, from the Net Proceeds of one or more Public Equity
Offerings, at a price equal to 109.50% of the principal amount thereof,
together with accrued and unpaid interest to the date of redemption, provided
that (i) at least 65% of the aggregate principal amount of Securities
originally issued remains outstanding immediately after each such redemption
and (ii) each such redemption occurs within 60 days following the closing of
each such Public Equity Offering.
In the case of any redemption of Securities, interest installments due
and payable on or prior to the date of redemption will be payable to Holders of
such Securities of record at the close of business on the relevant Record Date
referred to on the face hereof. Securities (or portions thereof) for whose
redemption and payment provision is made in accordance with the Indenture shall
cease to bear interest from and after the date of redemption. In the event of
redemption or purchase of this Series A Security in part only, a new Series A
Security or Securities for the unredeemed or unpurchased portion hereof shall
be issued in the name of the Holder hereof upon the cancellation hereof.
The Securities do not have the benefit of any sinking fund
obligations.
6. Notice of Redemption.
Notice of redemption will be mailed to the registered address of each
Holder of Securities to be redeemed at least 30 days but not more than 60 days
before the redemption date. If less than all Securities are to be redeemed,
the Trustee shall select pro rata, by lot or by any other method considered
fair and appropriate by the Trustee and, if the Securities are listed on any
securities exchange, by a method that complies with the requirements of such
exchange, the Securities to be redeemed in multiples of $1,000. Securities in
denominations larger than $1,000 may be redeemed in part.
PAGE 4 OF 10 PAGES
GLOBAL SECURITY: R-2
ISSUER: Xxxxxx International Inc. ISSUE DATE: February 13, 1998
5
7. Change of Control.
Upon the occurrence of a Change of Control, the Company shall be
obligated to make an offer to purchase all of the then outstanding Securities
(a "Change of Control Offer"), and shall purchase, on a Business Day (the
"Change of Control Purchase Date") not more than 60 nor less than 30 days
following the occurrence of a Change of Control, all of the then outstanding
Securities validly tendered pursuant to such Change of Control Offer, at a
purchase price (the "Change of Control Purchase Price) equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the
Change of Control Purchase Date. The Change of Control Offer is required to
remain open for at least 20 Business Days and until the close of business on
the fifth Business Day prior to the Change of Control Purchase Date.
In order to effect such Change of Control Offer, the Company shall,
not later than the 30th day after the occurrence of such Change of Control,
mail to the Trustee and to each Holder of the Securities notice of the Change
of Control Offer, which notice shall govern the terms of the Change of Control
Offer and shall state, among other things, the procedures that Holders of the
Securities must follow to accept the Change of Control Offer.
8. Asset Sale Offer.
In the event of certain Asset Sales, the Company may be required to
make an Asset Sale Offer to purchase all or any portion of each Holder's
Securities, at 100% of the principal amount thereof plus accrued interest, if
any, to the Asset Sale Offer Purchase Date.
9. Restrictive Covenants.
The Indenture imposes certain limitations on, among other things, the
ability of the Company to merge or consolidate with any other Person or sell,
lease or otherwise transfer all or substantially all of its properties or
assets, the ability of the Company or the Subsidiaries to dispose of certain
assets, to pay dividends and make certain other distributions and payments, to
make certain investments or redeem, retire, repurchase or acquire for value
shares of capital stock, to incur additional Indebtedness or incur encumbrances
against certain property, to engage in other business activities, and to enter
into certain transactions with Related Persons, all subject to certain
limitations described in the Indenture.
10. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not transfer or exchange any Securities selected
for redemption. Also, it need not transfer or exchange any Securities for a
period of 30 days before a selection of Securities to be redeemed.
11. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes and neither the Company, the Trustee nor any Agent shall be
affected by notice to the contrary.
PAGE 5 OF 10 PAGES
GLOBAL SECURITY: R-2
ISSUER: Xxxxxx International Inc. ISSUE DATE: February 13, 1998
6
12. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for one year, the Trustee or Paying Agent will pay the money back to the
Company at its request. After that, all liability of the Trustee and such
Paying Agents with respect to such money shall cease.
13. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to redemption or maturity,
as the case may be.
14. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Securities, and any past default or noncompliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the Securities. Without the consent of any Holder, the
Company may amend or supplement the Indenture or the Securities to, among other
things, cure any ambiguity, defect or inconsistency or to provide for
uncertificated Securities in addition to, or in place of, certificated
Securities or to make any change that does not adversely affect the rights of
any Holder.
15. Successor Corporation.
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor corporation
will be released from those obligations.
16. Defaults and Remedies.
An event of default generally is: default in payment of principal on
the Securities; default for 30 days in payment of interest on the Securities;
failure by the Company or any Subsidiary Guarantor for 45 days after notice to
comply with any of its other agreements in the Indenture; certain defaults
under or acceleration prior to maturity of other indebtedness; certain final
judgments against the Company or Subsidiaries; a failure of any Subsidiary
Guarantee of a Material Subsidiary to be in full force and effect or denial by
any Subsidiary Guarantor of its obligations with respect thereto; and certain
events of bankruptcy or insolvency. Subject to certain limitations in the
Indenture, if an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Securities
may declare all the Securities to be due and payable immediately, except that
in the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization relating to the Company, all outstanding
Securities shall become due and payable immediately without further action or
notice. Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to
it before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in principal amount of the Securities may
direct the Trustee in its exercise of any trust or power. The Company must
furnish an annual compliance certificate to the Trustee.
PAGE 6 OF 10 PAGES
GLOBAL SECURITY: R-2
ISSUER: Xxxxxx International Inc. ISSUE DATE: February 13, 1998
7
17. Trustee Dealings with Company.
U.S. Trust Company of Texas, N.A., the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Subsidiaries or
Affiliates with the same rights it would have if it were not Trustee, subject,
however, to required actions on the part of the Trustee in the event it
acquires any conflicting interest.
18. No Recourse Against Others.
A DIRECTOR, OFFICER, EMPLOYEE OR STOCKHOLDER, AS SUCH, OF THE COMPANY,
ANY SUBSIDIARY GUARANTOR OR THE TRUSTEE, SHALL NOT HAVE ANY LIABILITY FOR ANY
OBLIGATIONS OF THE COMPANY, ANY SUBSIDIARY GUARANTOR OR THE TRUSTEE, UNDER THE
SECURITIES OR THE INDENTURE OR FOR ANY CLAIM BASED ON, IN RESPECT OF OR BY
REASON OF, SUCH OBLIGATIONS OR THEIR CREATION. EACH HOLDER BY ACCEPTING A
SECURITY WAIVES AND RELEASES ALL SUCH LIABILITY. THE WAIVER AND RELEASE ARE
PART OF THE CONSIDERATION FOR THE ISSUE OF THE SECURITIES.
19. Authentication.
This Security shall not be valid until the Trustee or an
authenticating agent signs the certificate of authentication on the other side
of this Security.
20. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to Holders. No representation is
made as to the accuracy of such numbers as printed on the Securities and
reliance may be placed only on the other identification numbers printed hereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to: Secretary,
Xxxxxx International Inc., One Xxxxxxxx Center, 0000 Xxxxx Xxxxxxx, Xxxxxx,
Xxxxx 00000.
22. Governing Law.
THIS INDENTURE AND THE SECURITIES AND THE SUBSIDIARY GUARANTEES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE
EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
PAGE 7 OF 10 PAGES
GLOBAL SECURITY: R-2
ISSUER: Xxxxxx International Inc. ISSUE DATE: February 13, 1998
8
23. Exchange Option.
At the option of the Holders hereof, the Series A Securities may be
exchanged, pursuant to the Registration Rights Agreement, for a like aggregate
principal amount of Series B Securities.
PAGE 8 OF 10 PAGES
GLOBAL SECURITY: R-2
ISSUER: Xxxxxx International Inc. ISSUE DATE: February 13, 1998
9
FORM OF ASSIGNMENT
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
------------------------------------------------------------
------------------------------------------------------------
(Insert assignee's soc. sec. or tax ID no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Your Signature:
------------------------------
(Sign exactly as your name
appears on the Security)
Date:
---------------------
Signature Guarantee:
----------------------------------------
OPTION TO HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.12 or Section 4.17 of the Indenture, check the
appropriate box:
Section 4.12 [ ]
Section 4.17 [ ]
If you want to have only part of this Security purchased by the
Company pursuant to Section 4.12 or 4.17 of the Indenture, state the amount (in
integral multiples of $1,000):
$
-------------------------
Date: Signature:
--------------------- -------------------------------
(Sign exactly as your name
appears on the Security)
Signature Guarantee:
----------------------------------------
PAGE 9 OF 10 PAGES
GLOBAL SECURITY: R-2
ISSUER: Xxxxxx International Inc. ISSUE DATE: February 13, 1998
10
SUBSIDIARY GUARANTEE
Subject to the limitations set forth in the Indenture, the Subsidiary
Guarantors (as defined in the Indenture referred to in the Security upon which
this notation is endorsed, and each hereinafter referred to as a "Subsidiary
Guarantor," which term includes any successor or additional Subsidiary
Guarantor under the Indenture) have unconditionally guaranteed (a) the due and
punctual payment of the principal of, premium (if any) and interest on the
Securities, whether at maturity, acceleration, redemption or otherwise, (b) the
due and punctual payment of interest on the overdue principal of and interest
on the Securities, if any, to the extent lawful, (c) the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee, all in accordance with the terms set forth in the Indenture, and (d)
in case of any extension of time of payment or renewal of any Securities or any
of such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Capitalized terms used herein
have the meanings assigned to them in the Indenture unless otherwise indicated.
NO STOCKHOLDER, OFFICER, DIRECTOR OR INCORPORATOR, AS SUCH, PAST,
PRESENT OR FUTURE, OF THE SUBSIDIARY GUARANTORS SHALL HAVE ANY PERSONAL
LIABILITY UNDER THIS SUBSIDIARY GUARANTEE BY REASON OF HIS OR ITS STATUS AS
SUCH STOCKHOLDER, OFFICER, DIRECTOR OR INCORPORATOR.
This Subsidiary Guarantee shall be binding upon each Subsidiary
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to and
be vested in such transferee or assignee, all subject to the terms and
conditions hereof and in the Indenture.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
Xxxxxx Energy Services, Inc. Xxxxxx Environmental Remediation Technologies, Inc.
By: By:
--------------------------------------------- ------------------------------------------------------------------
Xxxxx X. Xxxx, President Xxxxx X. Xxxx, President
Xxxxxx International Sales Corporation Xxxxxx Worldwide Services, Corp.
By: By:
--------------------------------------------- ------------------------------------------------------------------
Xxxxx X. Xxxx, President Xxxxx X. Xxxx, President
Columbia Petroleum Services Corp. Air Drilling International, Inc.
By: By:
--------------------------------------------- ------------------------------------------------------------------
Xxxxx X. Xxxx, President Xxxxx X. Xxxxx, Vice President
International Petroleum Services, Inc. Air Drilling Services, Inc.
By: By:
--------------------------------------------- ------------------------------------------------------------------
Xxxxx X. Xxxx, President Xxxxx X. Xxxxx, Vice President
PAGE 10 OF 10 PAGES
GLOBAL SECURITY: R-2
ISSUER: Xxxxxx International Inc. ISSUE DATE: February 13, 1998
