EXHIBIT 3
SIXTH SUPPLEMENTAL INDENTURE
DATED AS OF __________, 2002
BETWEEN
THE XXXXXXXX COMPANIES, INC.
AS ISSUER
AND
BANK ONE TRUST COMPANY, N.A.
AS TRUSTEE
SIXTH SUPPLEMENTAL INDENTURE, dated as of _________, 2002 (the
"Sixth Supplemental Indenture"), between The Xxxxxxxx Companies, Inc., a
corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and Bank One Trust Company, N.A. (successor in
interest to the First National Bank of Chicago), as trustee (the
"Trustee").
WHEREAS, the Company executed and delivered the Indenture dated as
of November 10, 1997 (the "Base Indenture") to the Trustee to provide for
the issuance from time to time of the Company's senior, unsecured
debentures, notes, or other evidences of indebtedness (the "Securities"),
to be issued from in one or more series as might be determined by the
Company under the Base Indenture; and
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of a new series of its Securities
to be known as its Senior Notes due 2007 (the "Notes"), the form and terms
of such Notes and the terms, provisions and conditions thereof to be set
forth as provided in the Base Indenture and this Sixth Supplemental
Indenture (together, the "Indenture"); and
WHEREAS, the Company has requested that the Trustee execute and
deliver this Sixth Supplemental Indenture and all requirements necessary to
make this Sixth Supplemental Indenture a valid, binding and enforceable
instrument in accordance with its terms, and to make the Notes, when
executed, authenticated and delivered by the Company, the valid, binding
and enforceable obligations of the Company, have been done and performed,
and the execution and delivery of this Sixth Supplemental Indenture has
been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of
the Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Base Indenture, the form and terms of the Notes, the
Company covenants and agrees with the Trustee as follows:
Article 1
DEFINITIONS
Section 1.01. Definition Of Terms. Unless the context otherwise
requires:
(a) a term defined in the Base Indenture has the same
meaning when based in this Sixth Supplemental Indenture;
(b) a term defined anywhere in this Sixth Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do
not affect interpretation;
(e) the following terms have the meanings given to them
in the Purchase Contract Agreement (i) Applicable Principal
Amount, (ii) Authorized Newspaper; (iii) Cash Settlement; (iv)
Depositary; (v) Depositary Participant; (vi) Growth PACS; (vii)
Income PACS; (viii) Initial Remarketing; (ix) Initial Remarketing
Date; (x) Purchase Contract Agent; (xi) Quotation Agent; (xii)
Reset Agent; (xiii) Secondary Remarketing; (xiv) Secondary
Remarketing Date; (xv) Tax Event; (xvi) Treasury Portfolio; (xvii)
Treasury Portfolio Purchase Price; and (xviii) Underwriting
Agreement;
(f) the following terms have the meanings given to them
in this Section 1.01(f):
"Coupon Rate" shall have the meaning set forth in Section
2.05.
"Custodial Rate" shall have the meaning set forth in
Section 2.05.
"Custodial Agent" shall have the meaning set forth in the
Pledge Agreement.
"Notes" shall have the meaning specified in Section 2.01.
"Note Repayment Price" shall have the meaning set forth
in Section 3.04.
"Failed Initial Remarketing" shall have the meaning set
forth in Section 9.01(g).
"Failed Secondary Remarketing" shall have the meaning set
forth in Section 9.02 (h).
"Global Notes" shall have the meaning set forth in
Section 2.04.
"Maturity Date" shall have the meaning specified in
Section 2.02.
"Note Repayment Price" shall have the meaning set forth
in Section 3.04.
"Pledge Agreement" means the Pledge Agreement dated as of
[ ], 2002 among the Company, ____________________________, as
collateral agent (the "Collateral Agent"), custodial agent and
securities intermediary and ___________________, as purchase
contract agent and attorney-in-fact.
"Purchase Contract" shall have the meaning set forth in
the Purchase Contract Agreement.
"Purchase Contract Agreement" means the Purchase Contract
Agreement dated as of [ ], 2002, between the Company and [ ], as
purchase contract agent.
"Purchase Contract Settlement Date" means [ ].
"Put Option" shall have the meaning set forth in Section
3.04.
"Put Option Exercise Date" shall have the meaning set
forth in Section 3.04.
"Redemption Amount" shall mean, for each Note, the
product of the principal amount of such Note and a fraction, the
numerator of which shall be the Treasury Portfolio Purchase Price
and the denominator of which shall be the principal amount of such
Note.
"Redemption Price" means the redemption price per Note
equal to the Redemption Amount plus any accrued and unpaid
interest on such Note to the date of redemption.
"Regular Record Date" means, with respect to any Interest
Payment Date for the Notes, the close of business on the first day
of the month in which such Interest Payment Date falls.
"Remarketing Agent" means [Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated] or any successor thereto or replacement
Remarketing Agent under the Remarketing Agreement.
"Remarketing Agreement" means the Remarketing Agreement,
dated as of [ ] , 2002, between the Company, [Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated], as remarketing agent and [ ]
as purchase contract agent and attorney-in-fact.
"Reset Announcement Date" means, in the case of the Reset
Rate to be determined on the Initial Remarketing Date, the seventh
Business Day immediately preceding November 16, 2004 and, in the
case of the Reset Rate to be determined on the Secondary
Remarketing Date, the seventh Business Day immediately preceding
the Purchase Contract Settlement Date.
"Reset Effective Date" means (i) November 16, 2004 in
case the interest rate is reset on the Initial Remarketing Date,
or (ii) the Purchase Contract Settlement Date, in case the
interest rate is reset on the Secondary Remarketing Date.
"Reset Rate" means the interest rate per year (to be
determined by the Reset Agent), equal to the sum of (x) the Reset
Spread and (y) the rate of interest on (1) in the case of the
Reset Rate to be determined on the Initial Remarketing Date, the
Two and One-Quarter Year Benchmark Treasury in effect on the
Initial Remarketing Date or (2) in the case of the Reset Rate to
be determined on the Secondary Remarketing Date, the Two-Year
Benchmark Treasury in effect on the Secondary Remarketing Date.
"Reset Spread" means (a) in the case of the Reset Rate to
be determined on the Initial Remarketing Date, a spread amount to
be determined by the Reset Agent on the applicable Reset
Announcement Date as the appropriate spread so that the Reset Rate
will be the interest rate that the Notes should bear in order for
the Applicable Principal Amount of Notes to have an approximate
aggregate market value of 100.5% of the Treasury Portfolio
Purchase Price on the Initial Remarketing Date and (b) in the case
of the Reset Rate to be determined on the Secondary Remarketing
Date, a spread amount to be determined by the Reset Agent on the
applicable Reset Announcement Date as the appropriate spread so
that the Reset Rate will be the interest rate that the Notes
should bear in order for the Applicable Principal Amount of Notes
to have an approximate aggregate market value of 100.5% of the
Applicable Principal Amount of Notes on the Secondary Remarketing
Date.
"Tax Event Redemption Date" shall have the meaning set
forth in Section 3.01.
"Two-Year Benchmark Treasury" means direct obligations of
the United States (which may be obligations traded on a
when-issued basis only) having a maturity comparable to the
remaining term to maturity of the Notes, as agreed upon by the
Company and the Reset Agent. The rate for the Two-Year Benchmark
Treasury will be the bid side rate displayed at 10:00 A.M., New
York City time, on the third Business Day immediately preceding
the Purchase Contract Settlement Date in the Telerate system (or
if the Telerate system is (a) no longer available on the Secondary
Remarketing Date or (b) in the opinion of the Reset Agent (after
consultation with the Company) no longer an appropriate system
from which to obtain such rate, such other nationally recognized
quotation system as, in the opinion of the Reset Agent (after
consultation with the Company), is appropriate). If such rate is
not so displayed, the rate for the Two-Year Benchmark Treasury
shall be, as calculated by the Reset Agent, the yield to maturity
for the Two-Year Benchmark Treasury, expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis, and computed by taking
the arithmetic mean of the secondary market bid rates, as of 10:30
A.M., New York City time, on the Secondary Remarketing Date of
three leading United States government securities dealers selected
by the Reset Agent (after consultation with the Company)(which may
include the Reset Agent or an Affiliate thereof).
"Two and One-Quarter Year Benchmark Treasury" means
direct obligations of the United States(which may be obligations
traded on a when-issued basis only) having a maturity comparable
to the remaining term to maturity of the Notes, as agreed upon by
the Company and the Reset Agent. The rate for the Two and
One-Quarter Year Benchmark Treasury will be the bid side rate
displayed at 10:00 A.M., New York City time, on the Initial
Remarketing Date in the Telerate system (or if the Telerate system
is (a) no longer available on the Initial Remarketing Date or (b)
in the opinion of the Reset Agent (after consultation with the
Company) no longer an appropriate system from which to obtain such
rate, such other nationally recognized quotation system as, in the
opinion of the Reset Agent (after consultation with a the Company)
is appropriate). If such rate is not so displayed, the rate for
the Two and One-Quarter Year Benchmark Treasury shall be, as
calculated by the Reset Agent, the yield to maturity for the Two
and One-Quarter Year Benchmark Treasury, expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis, and computed by taking
the arithmetic mean of the secondary market bid rates, as of 10:30
A.M., New York City time, on the Initial Remarketing Date of three
leading United States government securities dealers selected by
the Reset Agent (after consultation with the Company) (which may
include the Reset Agent or an Affiliate thereof).
The terms "Indenture," "Base Indenture," and "Notes"
shall have the respective meanings set forth in the recitals to
this Sixth Supplemental Indenture and the paragraph preceding such
recitals.
Article 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.01 . Designation and Principal Amount. There is hereby
authorized a series of Securities designated as the Senior Notes due 2007,
(the "Notes") limited (except as otherwise provided in Article II of the
Indenture) in aggregate principal amount to $[ ] (or, $[ ], if the
Underwriters' over-allotment option is exercised in full) . The Notes may
be issued from time to time upon written order of the Company for the
authentication and delivery of Notes pursuant to Section 2.4 of the Base
Indenture.
Section 2.02 . Maturity. The date upon which the Notes shall
become due and payable at final maturity, together with any accrued and
unpaid interest, is February 16, 2007 (the "Maturity Date").
Section 2.03 . Form, Payment and Appointment. Except as provided
in Section 2.04, the Notes shall be issued in fully registered,
certificated form, bearing identical terms. Principal of and premium, if
any, and interest on the Notes will be payable, the transfer of such Notes
will be registrable and such Notes will be exchangeable for Notes bearing
identical terms and provisions at the office or agency of the Company
maintained for such purpose as described below; provided, however, that
payment of interest may be made at the option of the Company by check
mailed to the Holder at such address as shall appear in the Securities
Register or by wire transfer to an account appropriately designated by the
Holder entitled to payment.
The Company hereby designates the Borough of Manhattan, The City
of New York as the place of payment ("Place of Payment") for the Notes, and
the office or agency maintained by the Company in such Place of Payment for
the purposes contemplated by this Section 2.03 shall initially be [the
Corporate Trust Office of the Trustee in c/o ____________________________.]
The Security Registrar, transfer agent and Paying Agent for the
Notes shall be the Trustee.
The Notes shall be issuable in denominations of $[25] and integral
multiples of $[25] in excess thereof.
The Notes may be issued, in whole or in part, in permanent global
form and, if issued in permanent global form, the U.S. Depositary shall be
The Depository Trust Company or such other depositary as any officer of the
Company may from time to time designate.
Section 2.04 . Global Notes. (a) Unless and until it is exchanged
for the Notes in registered form, one or more global Notes in principal
amount equal to the aggregate principal amount of all outstanding Notes
("Global Notes") may be transferred, in whole but not in part, only to the
Depositary or a nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(b) If at any (i) time the Depositary notifies the Company that it
is unwilling or unable to continue as a Depositary for the Global Notes and
no successor Depositary shall have been appointed within 90 days after such
notification, (ii) the Depositary at any time ceases to be a clearing
agency registered under the Securities Exchange Act of 1934 at any time the
Depositary is required to be so registered to act as such Depositary and no
successor Depositary shall have been appointed within 90 days after the
Company's becoming aware of the Depositary's ceasing to be so registered,
(iii) the Company, in its sole discretion, determines that the Global Notes
shall be so exchangeable or (iv) there shall have occurred and be
continuing an Event of Default, the Company will execute, and subject to
Article Five of the Base Indenture, the Trustee, upon written notice from
the Company, will authenticate and deliver the Notes in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Note
in exchange for such Global Note.
Upon exchange of the Global Note for such Notes in definitive
registered form without coupons, in authorized denominations, the Global
Note shall be cancelled by the Trustee. Such Notes in definitive registered
form issued in exchange for the Global Note 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. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are
so registered.
Section 2.05 . Interest. (a) The Note will bear interest initially
at the rate of ___% per year (the "Coupon Rate") from the original date of
issuance through and including the day immediately preceding the Reset
Effective Date and at the Reset Rate thereafter until the principal thereof
is paid or duly made available for payment and shall bear interest, to the
extent permitted by law, compounded quarterly, on any overdue principal and
premium, if any, and on any overdue installment of interest at the Coupon
Rate through and including the day immediately preceding the Reset
Effective Date and at the Reset Rate thereafter, payable quarterly in
arrears on February 16, May 16, August 16 and November 16 of each year
(each, an "Interest Payment Date") commencing on February 16, 2002, to the
Person in whose name such Note, or any predecessor Note, is registered at
the close of business on the Regular Record Date for such interest
installment.
(b) The interest rate on the Notes will be reset on the Initial
Remarketing Date to the applicable Reset Rate (which Reset Rate will be
effective on and after November 16, 2004), except in the event of a Failed
Initial Remarketing. In the event of a Failed Initial Remarketing, the
interest rate on the Notes will be reset on the Secondary Remarketing Date
to the applicable Reset Rate (which Reset Rate will be effective on and
after the Purchase Contract Settlement Date), except that in the event of a
Failed Secondary Remarketing, the interest rate on the Notes will not be
reset. On the applicable Reset Announcement Date, the applicable Reset
Spread and the Two-Year Benchmark Treasury or Two and One-Quarter Year
Benchmark Treasury, as applicable, will be announced by the Company. On the
Business Day immediately following such Reset Announcement Date, the
Holders of Notes will be notified of such Reset Spread and Two-Year
Benchmark Treasury or Two and One-Quarter Year Benchmark Treasury, as
applicable, by the Company. Such notice shall be sufficiently given to such
Holders of Notes if published in an Authorized Newspaper.
(c) Not later than seven calendar days nor more than 15 calendar
days immediately preceding the applicable Reset Announcement Date, the
Company will request that the Depositary or its nominee (or any successor
Depositary or its nominee) notify the Holders of Notes of such Reset
Announcement Date and, in the case of a Secondary Remarketing, the
procedures to be followed by such holders of Notes wishing to settle the
related Purchase Contracts with separate cash on the Business Day
immediately preceding the Purchase Contract Settlement Date.
(d) The amount of interest payable for any period will be computed
on the basis of a 360-day year consisting of twelve 30-day months. In the
event that any date on which interest is payable on the Notes is not a
Business Day, then payment of interest payable on such date will be made on
the next succeeding day which is a Business Day (and without any interest
or other payment in respect of any such delay).
Article 3
REDEMPTION OF THE NOTES
Section 3.01. Tax Event Redemption. If a Tax Event shall occur and
be continuing, the Company may, at its option, redeem the Notes in whole
(but not in part) at any time at a price per Note equal to the Redemption
Price. Installments of interest on Notes which are due and payable on or
prior to the date of redemption (the "Tax Event Redemption Date") will be
payable to the Holders of the Notes registered as such at the close of
business on the Regular Record Date. If, following the occurrence of a Tax
Event prior to the Purchase Contract Settlement Date, the Company exercises
its option to redeem the Notes, the Company shall appoint the Quotation
Agent to assemble the Treasury Portfolio in consultation with the Company.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Tax Event Redemption Date to each registered Holder of
the Notes at its registered address. Unless the Company defaults in payment
of the Redemption Price, on and after the Tax Event Redemption Date
interest shall cease to accrue on the Notes.
Section 3.02. Redemption Procedures For Notes. Payment of the
Redemption Price to each Holder of Notes shall be made by the Company, no
later than 12:00 noon, New York City time, on the Tax Event Redemption
Date, by check or wire transfer in immediately available funds at such
place and to such account as may be designated by each such Holder of
Notes, including the Trustee or the Collateral Agent, as the case maybe. If
the Trustee holds immediately available funds sufficient to pay the
Redemption Price of the Notes, then, on such Tax Event Redemption Date,
such Notes will cease to be outstanding and interest thereon will cease to
accrue, whether or not such Notes have been received by the Company, and
all other rights of the Holder in respect of the Notes shall terminate and
lapse (other than the right to receive the Redemption Price upon delivery
of such Notes but without interest on such Redemption Price).
Section 3.03. No Sinking Fund. The Notes are not entitled to the
benefit of any sinking fund.
Section 3.04. Option To Put Notes Upon Failed Secondary
Remarketing. If a Failed Secondary Remarketing (as described in Section
5.02 of the Purchase Contract Agreement and incorporated herein by
reference) has occurred, holders of Notes who hold such Notes following the
Purchase Contract Settlement Date shall have the right (the "Put Option")
to put such Notes to the Company on April 1, 2005 (the "Put Option Exercise
Date"), upon at least three Business Days prior notice, at a repayment
price equal to the principal amount of such Notes plus an amount equal to
the accrued and unpaid interest thereon to the date of payment (the "Note
Repayment Price").
Section 3.05. Repurchase Procedure For Notes. (a) In order for the
Notes to be repurchased on the Put Option Exercise Date, the Trustee must
receive on or prior to 5:00 p.m. New York City time on the third Business
Day immediately preceding the Put Option Exercise Date, at its Corporate
Trust Office or at an office or agency maintained by the Company in the
Borough of Manhattan, The City of New York as contemplated by Section 2.03
hereof, the Notes to be repurchased with the form entitled "Option to Elect
Repayment" on the reverse of or otherwise accompanying such Notes duly
completed. Any such notice received by the Trustee shall be irrevocable.
All questions as to the validity, eligibility (including time of receipt)
and acceptance of the Notes for repayment shall be determined by the
Company, whose determination shall be final and binding.
(b) Payment of the Note Repayment Price shall be made through the
Trustee, subject to the Trustee's receipt of payment from the Company in
accordance with the terms of the Indenture, no later than 12:00 noon, New
York City time, on the Put Option Exercise Date, and to such account as may
be designated. If the Trustee holds immediately available funds sufficient
to pay the Note Repayment Price of Notes presented for repayment, then,
immediately prior to the close of business on the Put Option Exercise Date,
such Notes will cease to be outstanding and Interest thereon will cease to
accrue, whether or not such Notes have been received by the Company, and
all other rights of the Holder in respect of the Notes, including the
Holder's right to require the Company to repay such Notes, shall terminate
and lapse (other than the right to receive the Note Repayment Price upon
delivery of such Notes but without interest on such Note Repayment Price) .
Neither the Trustee nor the Company will be required to register or cause
to be registered the transfer of any Note for which repayment has been
elected.
Article 4
EXPENSES
Section 4.01. Payment Of Expenses. In connection with the
offering, sale and issuance of the Notes to the Holders, the Company, in
its capacity as borrower with respect to the Notes shall pay all costs and
expenses relating to the offering, sale and issuance of the Notes,
including commissions to the underwriters payable pursuant to the
Underwriting Agreement and compensation of the Trustee under the Indenture
in accordance with the provisions of Section 6.6 of the Base Indenture.
Article 5
NOTICE
Section 5.01. Notice By The Company. The Company shall give prompt
written notice to a Responsible Officer of the Trustee of any fact known to
the Company that would prohibit the making of any payment of monies to or
by the Trustee in respect of the Notes. Notwithstanding any of the
provisions of the Base Indenture and this Sixth Supplemental Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment of monies to or by the
Trustee in respect of the Notes; provided, however, that if the Trustee
shall not have received the notice provided for in this Article 5 at least
two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including without limitation, the
payment of the principal of (or premium, if any) or interest on any Note),
then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and shall not
be affected by any notice to the contrary that may be received by it within
two Business Days prior to such date.
Article 6
FORM OF NOTE
Section 6.01. Form Of Note. The Notes and the Trustee's
Certificate of Authentication to be endorsed thereon are to be
substantially in the forms attached as Exhibit A hereto, with such changes
therein as the officers of the Company executing the Notes (by manual or
facsimile signature) may approve, such approval to be conclusively
evidenced by their execution thereof.
Article 7
ORIGINAL ISSUE OF NOTES
Section 7.01. Original Issue Of Notes. Notes in the aggregate
principal amount of $[ ] (or, $[ ], if the Underwriters' over-allotment
option is exercised in full) may from time to time, upon execution of this
Sixth Supplemental Indenture, be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes to or upon the written order of the
Company pursuant to Section 2.2 of the Base Indenture without any further
action by the Company.
The Company shall file with the Trustee promptly at the end of
each calendar year (i) a written notice specifying the amount of original
issue discount (including daily rates and accrual periods) accrued on
Outstanding Notes as of the end of the year and (ii) such other specific
information relating to such original issue discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time to
time.
Article 8
MISCELLANEOUS
Section 8.01. Ratification Of Indenture. The Indenture as
supplemented by this Sixth Supplemental Indenture, is in all respects
ratified and confirmed, and this Sixth Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and
therein provided.
Section 8.02. Trustee Not Responsible For Recitals. The recitals
herein contained are made by the Company and not by the Trustee, and the
Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representation as to the validity or sufficiency of this Sixth
Supplemental Indenture.
Section 8.03. New York Law To Govern. THIS SIXTH SUPPLEMENTAL
INDENTURE, EACH NOTE AND EACH COUPON SHALL BE DEEMED TO BE NEW YORK
CONTRACTS, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF SAID STATE (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW).
Section 8.04. Separability. In case any one or more of the
provisions contained in this Sixth Supplemental Indenture or in the Notes
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, then, to the extent permitted by law, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Sixth
Supplemental Indenture or of the Notes, but this Sixth Supplemental
Indenture and the Notes shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
Section 8.05. Counterparts. This Sixth 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.
Article 9
REMARKETING
Section 9.01. Initial Remarketing Procedures. The Company will
request, not later than seven nor more than 15 calendar days prior to the
Initial Remarketing Date that the Depositary notify the Holders of the
Notes and the Holders of Income PACS and Growth PACS of the Initial
Remarketing.
(b) Not later than 11:00 A.M., New York City time, on the second
Business Day immediately preceding the Initial Remarketing Date, each
Holder of the Notes not constituting components of Income PACS may elect to
have Notes held by such Holder remarketed. Holders of Notes that are not a
component of Income PACS shall give notice of their election to have such
Notes remarketed to the Collateral Agent pursuant to the Pledge Agreement.
Any such notice shall be irrevocable after 11:00 A.M., New York City time,
on the second Business Day immediately preceding the Initial Remarketing
Date and may not be conditioned upon the level at which the Reset Rate is
established. Promptly after 11:30 A.M., New York City time, on such second
Business Day, the Trustee, based on the notices received by it prior to
such time (including notices from the Purchase Contract Agent as to
Purchase Contracts for which Cash Settlement has been elected), shall
notify the Company and the Remarketing Agent of the principal amount of
Notes to be tendered for remarketing. Under Section 5.02 of the Purchase
Contract Agreement, Notes that constitute components of Income PACS will be
remarketed as provided therein and in this Section 9.01. The Notes
constituting components of Income PACS shall be deemed tendered,
notwithstanding any failure by the Holder of such Income PACS to deliver or
properly deliver such Notes to the Remarketing Agent for purchase.
(c) The right of each Holder to have Notes (including any Notes
that constitute components of Income PACS) tendered for purchase shall be
limited to the extent that (i) the Remarketing Agent conducts a remarketing
pursuant to the terms of the Remarketing Agreement, (ii) Notes tendered
have not been called for redemption, (iii) the Remarketing Agent is able to
find a purchaser or purchasers for tendered Notes at a price per Note such
that the aggregate price for the Applicable Principal Amount of Notes is
not less than 100% of the Treasury Portfolio Purchase Price, and (iv) such
purchaser or purchasers deliver the purchase price therefor to the
Remarketing Agent as and when required.
(d) On the Initial Remarketing Date, the Remarketing Agent shall
use reasonable efforts to remarket, at a price per Note such that the
aggregate price for the Applicable Principal Amount of Notes is equal to
approximately 100.5% of the Treasury Portfolio Purchase Price, Notes
tendered or deemed tendered for purchase.
(e) If there are no Income PACS outstanding and none of the
Holders elect to have Notes held my them remarketed, the Reset Rate shall
be the rate determined by the Reset Agent, subject to the terms of the
Remarketing Agreement, as the rate that would have been established had a
remarketing been held on the Initial Remarketing Date.
(f) If the Remarketing Agent has determined that it will be able
to remarket all Notes tendered or deemed tendered prior to 4:00 P.M., New
York City time, on the Initial Remarketing Date, the Reset Agent, subject
to the terms at the Remarketing Agreement, shall determine the Reset Rate.
(g) If, by 4:00 P.M., New York City time, on the Initial
Remarketing Date, the Remarketing Agent is unable to remarket all Notes
tendered or deemed tendered for purchase or if the Initial Remarketing
shall not have occurred because a condition precedent to the Remarketing
shall not have been fulfilled, a failed remarketing ("Failed Initial
Remarketing") shall be deemed to have occurred and the Remarketing Agent
shall so advise by telephone the Collateral Agent, Company, Trustee, and
Depositary.
(h) By approximately 4:30 P.M., New York City time, on the Initial
Remarketing Date, provided that there has not been a Failed Initial
Remarketing, the Remarketing Agent shall advise, by telephone (i) the
Collateral Agent, the Company, Trustee, and Depositary of the Reset Rate
determined in the Initial Remarketing and the aggregate principal amount of
Notes sold in the Initial Remarketing, (ii) each purchaser (or the
Depositary Participant thereof) of the Reset Rate and the aggregate
principal amount of Notes such purchaser is to purchase and (iii) each
purchaser to give instructions to its Depositary Participant to pay the
purchase price on November 16, 2004 in same day funds against delivery of
the Notes purchased through the facilities of the Depositary.
(i) In accordance with the Depositary's normal procedures, on
November 16, 2004, the transactions described above with respect to each
Note tendered for purchase and sold in the Initial Remarketing shall be
executed through the Depositary, and the accounts of the respective
Depositary Participants shall be debited and credited and such Notes
delivered by book entry as necessary to effect purchases and sales of such
Notes. The Depositary shall make payment in accordance with its normal
procedures.
(j) If any Holder selling Notes in the Initial Remarketing fails
to deliver such Notes, the Depositary Participant of such selling Holder
and of any other Person that was to have purchased Notes in the Initial
Remarketing may deliver to any such other Person an aggregate principal
amount of Notes that is less than the aggregate principal amount of Notes
that otherwise was to be purchased by such Person. In such event, the
aggregate principal amount of Notes to be so delivered shall be determined
by such Depositary Participant, and delivery of such lesser aggregate
principal amount of Notes shall constitute good delivery.
(k) The Remarketing Agent is not obligated to purchase any Notes
in the Initial Remarketing or otherwise. Neither the Trust, any Trustee,
the Company nor the Remarketing Agent shall be obligated in any case to
provide funds to make payment upon tender of Notes for remarketing.
(l) The tender and settlement procedures set forth in this Section
9.01, including provisions for payment by purchasers of Notes in the
Initial Remarketing, shall be subject to modification, notwithstanding any
provision to the contrary set forth herein, to the extent required by the
Depositary or if the book-entry system is no longer available for the Notes
at the time of the Initial Remarketing, to facilitate the tendering and
remarketing of Notes in certificated form. In addition, the Remarketing
Agent may, notwithstanding any provision to the contrary set forth herein,
modify the settlement procedures set forth herein in order to facilitate
the settlement process.
(m) Anything herein to the contrary notwithstanding, the Reset
Rate shall in no event exceed the maximum rate permitted by applicable law
and, as provided in the Remarketing Agreement, neither the Remarketing
Agent nor the Reset Agent shall have any obligation to determine whether
there is any limitation under applicable law on the Reset Rate or, if there
is any such limitation, the maximum permissible Reset Rate on the Notes and
they shall rely solely upon written notice from the Company (which the
Company agrees to provide prior to the tenth Business Day before November
16, 2004) as to whether or not there is any such limitation and, if so, the
maximum permissible Reset Rate.
Section 9.02. Secondary Remarketing Procedures. (a) If a Failed
Initial Remarketing has occurred, the Company will request, not later than
seven nor more than 15 calendar days prior to the Secondary Remarketing
Date that the Depositary notify the Holders of the Notes and the Holders of
Income PACS and Growth PACS of the Secondary Remarketing and of the
procedures that must be followed if a Holder of Notes wishes to exercise
such Holder's rights with respect to the Put Option if there is a Failed
Secondary Remarketing.
(b) Not later than 5:00 P.M., New York City time, on the second
Business Day immediately preceding the Secondary Remarketing Date, each
Holder of the Notes may elect to have Notes held by such Holder remarketed.
Under Section 5.02 of the Purchase Contract Agreement, Holders of Income
PACS that do not give notice of intention to make a Cash Settlement of
their related Purchase Contracts or who give such notice but fail to pay
the Purchase Price in cash as required by Section 5.02(b)(ii) of the
Purchase Contract Agreement shall be deemed to have consented to the
disposition of the Notes constituting a component of such Income PACS.
Holders of Notes that are not a component of Income PACS shall give notice
of their election to have such Notes remarketed to the Custodial Agent
pursuant to the Pledge Agreement. Any such notice shall be irrevocable
after 5:00 P.M., New York City time, on the second Business Day immediately
preceding the Secondary Remarketing Date and may not be conditioned upon
the level at which the Reset Rate is established. Promptly after 5:30 P.M.,
New York City time, on such second Business Day, the Trustee, based on the
notices received by it prior to such time (including notices from the
Purchase Contract Agent as to Purchase Contracts for which Cash Settlement
has been elected), shall notify the Company and the Remarketing Agent of
the principal amount of Notes to be tendered for remarketing.
(c) If any Holder of Income PACS does not give a notice of its
intention to make a Cash Settlement or gives a notice of election to tender
Notes as described in Section 9.02(b), the Notes of such Holder shall be
deemed tendered, notwithstanding any failure by such Holder to deliver or
properly deliver such Notes to the Remarketing Agent for purchase.
(d) The right of each Holder to have Notes (including any Notes
that constitute components of Income PACS) tendered for purchase shall be
limited to the extent that (i) the Remarketing Agent conducts a remarketing
pursuant to the terms of the Remarketing Agreement, (ii) Notes tendered
have not been called for redemption, (iii) the Remarketing Agent is able to
find a purchaser or purchasers for tendered Notes at a price of not less
than 100% of the principal amount thereof, and (iv) such purchaser or
purchasers deliver the purchase price therefor to the Remarketing Agent as
and when required.
(e) If a Failed Initial Remarketing has occurred, on the Secondary
Remarketing Date, the Remarketing Agent shall use reasonable efforts to
remarket, at a price equal to approximately 100.5% of the aggregate
principal amount thereof, Notes tendered or deemed tendered for purchase.
(f) If none of the Holders elect or are deemed to have elected to
have Notes held by them remarketed, the Reset Rate shall be the rate
determined by the Reset Agent, subject to the terms of the Remarketing
Agreement, as the rate that would have been established had a remarketing
been held on the Secondary Remarketing Date.
(g) If the Remarketing Agent has determined that it will be able
to remarket all Notes tendered or deemed tendered prior to 4:00 P.M., New
York City time, on the Secondary Remarketing Date, the Reset Agent shall,
subject to the terms of the Remarketing Agreement, determine the Reset
Rate.
(h) If, by 4:00 P.M., New York City time, on the Secondary
Remarketing Date, the Remarketing Agent is unable to remarket all Notes
tendered or deemed tendered for purchase or if the Secondary Remarketing
shall not have occurred because a condition precedent to the Secondary
Remarketing shall not have been fulfilled, a failed remarketing ("Failed
Secondary Remarketing") shall be deemed to have occurred, the interest rate
on the Notes shall not be reset and the Remarketing Agent shall so advise
by telephone the Collateral Agent, Company, Trustee, and Depositary.
(i) By approximately 4:30 P.M., New York City time, on the
Secondary Remarketing Date, provided that there has not been a Failed
Secondary Remarketing, the Remarketing Agent shall advise, by telephone (i)
the Collateral Agent, the Company, Trustee, and Depositary of the Reset
Rate determined in the Secondary Remarketing and the aggregate principal
amount of Notes sold in the Secondary Remarketing, (ii) each purchaser (or
the Depositary Participant thereof) of the Reset Rate and the aggregate
principal amount of Notes such purchaser is to purchase and (iii) each
purchaser to give instructions to its Depositary Participant to pay the
purchase price on the Purchase Contract Settlement Date in same day funds
against delivery of the Notes purchased through the facilities of the
Depositary.
(j) In accordance with the Depositary's normal procedures, on the
Purchase Contract Settlement Date, the transactions described above with
respect to each Note tendered for purchase and sold in the Secondary
Remarketing shall be executed through the Depositary, and the accounts of
the respective Depositary Participants shall be debited and credited and
such Notes delivered by book entry as necessary to effect purchases and
sales of such Notes. The Depositary shall make payment In accordance with
its normal procedures.
(k) If any Holder selling Notes in the Secondary Remarketing fails
to de1iver such Notes, the Depositary Participant of such selling Holder
and of any other Person that was to have purchased Notes in the Secondary
Remarketing may deliver to any such other Person an aggregate principal
amount of Notes that is less than the aggregate principal amount of Notes
that otherwise was to be purchased by such Person. In such event, the
aggregate principal amount of Notes to be so delivered shall be determined
by such Depositary Participant, and delivery of such lesser aggregate
principal amount of Notes shall constitute good delivery.
(l) The Remarketing Agent is not obligated to purchase any Notes
in the Secondary Remarketing or otherwise. Neither the Trust, any Trustee,
the Company nor the Remarketing Agent shall be obligated in any case to
provide funds to make payment upon tender of Notes for remarketing.
(m) The tender and settlement procedures set in this Section 9.02,
including provisions for payment by purchasers of Notes in the Secondary
Remarketing, shall be subject to modification, notwithstanding any
provision to the contrary set forth herein, to the extent required by the
Depositary or if the book-entry system is no longer available for the Notes
at the time of the Secondary Remarketing, to facilitate the tendering and
remarketing of Notes in certificated form. In addition, the Remarketing
Agent may, notwithstanding any provision to the contrary set forth herein,
modify the settlement procedures set forth herein in order to facilitate
the settlement process.
(n) Anything herein to the contrary notwithstanding, the Reset
Rate shall in no event exceed the maximum rate permitted by applicable law
and, as provided in the Remarketing Agreement, neither the Remarketing
Agent nor the Reset Agent shall have any obligation to determine whether
there is any limitation under applicable law on the Reset Rate or, if there
is any such limitation, the maximum permissible Reset Rate on the Notes and
they shall rely solely upon written notice from the Company (which the
Company agrees to provide prior to the 10th Business Day before the
Purchase Contract Settlement Date) as to whether or not there is any such
limitation and, if so, the maximum permissible Reset Rate.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
THE XXXXXXXX COMPANIES, INC., as Issuer
By: __________________________________
Name:
Title:
BANK ONE TRUST COMPANY, N.A., as Trustee
By: ___________________________________
Name:
Title:
EXHIBIT A
(FORM OF FACE OF NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT:] THIS NOTE IS A GLOBAL NOTE
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF THE
DEPOSITORY TRUST COMPANY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCED DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY TO A NOMINEE OF THE DEPOSITORY TRUST COMPANY OR BY
A NOMINEE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITORY TRUST COMPANY
OR ANOTHER NOMINEE OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF TIE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CUSIP No. ________________
$_____________________________________
THE XXXXXXXX COMPANIES, INC.
_____% SENIOR NOTE
DUE 2007
THE XXXXXXXX COMPANIES, INC., a Delaware corporation (the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to Bank One Trust Company, National Association, or registered assigns,
the principal sum of ________________________ Dollars ($_________) on
February 16, 2007 (such date is hereinafter referred to as the "Maturity
Date"), and to pay interest on said principal sum from January __, 2002 or
from the next recent date to which interest has been paid or duly provided
for, quarterly in arrears on February 16, May 16, August 16 and November 16
of each year (each such date, an "Interest Payment Date"), commencing on
February 16, 2002 initially at the rate of ___% per year through and
including the day immediately preceding the Reset Effective Date and the
Reset Rate thereafter until the principal hereof shall have been paid or
duly made available for payment and, to the extent permitted by law, to pay
interest, compounded quarterly, on any overdue principal and premium, if
any, and on any overdue installment of interest at the rate per year of
____% through and including the day immediately preceding the Reset
Effective Date and at the Reset Rate thereafter. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a
360-day year consisting of twelve 30-day months and, except as provided in
the Indenture (as defined below). In the event that any date on which
interest is payable on this Note is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of
any such delay). The interest installment so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the person in whose name this Note (or one or more
predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest installment, which shall be the close
of business on the first day of the month in which such Interest Payment
Date falls. Any such interest installment not punctually paid or duly
provided for on any Interest Payment Date shall forthwith cease to be
payable to the registered Holders at the close of business on such Regular
Record Date and may be paid to the Person in whose name this Note (or one
or more predecessor Securities) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered Holders
of this series of Notes not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of
(and premium, if any) and the interest on this Note shall be payable at the
office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York in any coin or currency of the United
States of America that at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the registered
Holder at such address as shall appear in the Security Register or by wire
transfer to an account appropriately designated by the Holder entitled
thereto.
The indebtedness evidenced by this Note is, to the extent provided
in the Indenture, senior and unsecured and will rank equal in right of
payment to all other senior unsecured obligations of the Company.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to or be valid or obligatory for any purpose until the
Certificate of Authentication shall have been signed by or on behalf of the
Trustee.
The provisions of this Note are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated: [ ]
THE XXXXXXXX COMPANIES, INC.
as Issuer
By: _____________________________
Name:
Title:
Attest:
By: __________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the
within-- mentioned Indenture.
Dated ____________________________
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By: __________________________________
Authorized Signatory
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Notes"), issued and to be
issued in one or more series under and pursuant to an Indenture dated as of
November 10, 1997 (the "Base Indenture") between the Company and Bank One
Trust Company N.A. (successor in interest to The First National Bank of
Chicago), as Trustee (the "Trustee," which term includes any successor
trustee under the Indenture), as supplemented by a Sixth Supplemental
Indenture, dated as of January __, 2002 (the "Sixth Supplemental
Indenture") between the Company and the Trustee (the Base Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Notes. By the
terms of the Indenture, the Securities are issuable in series that may vary
as to amount, date of maturity, rate of interest and in other respects as
provided in the Indenture. This series of Securities is limited in
aggregate principal amount as specified in said Sixth Supplemental
Indenture.
If a Tax Event shall occur and be continuing, the Company may, at
its option, redeem the Notes in whole (but not in part) at any time at a
price per Note equal to the Redemption Price. The Redemption Price shall be
paid to each Holder of the Notes by the Company, no later than 12:00 noon,
New York City time, on the Tax Event Redemption Date, by check or wire
transfer in immediately available funds, at such place and to such account
as may be designated by each such Holder.
The Notes are not entitled to the benefit of any sinking fund.
If a Failed Secondary Remarketing (as described in Section 5.02 of
the Purchase Contract Agreement and incorporated herein by reference) has
occurred, each holder of Notes who holds such Notes on the day immediately
following the Purchase Contract Settlement Date shall have the right (the
"Put Option") on the Business Day immediately following the Purchase
Contract Settlement Date, to put such Notes to the Company, on April 1,
2005 (the "Put Option Exercise Date"), upon at least three Business Days
prior notice, at a repayment price equal to the principal amount of this
Note plus an amount equal to the accrued and unpaid interest thereon to the
date of payment (the "Note Repayment Price").
In order for the Notes to be so repurchased, the Trustee must
receive, on or prior to 5:00 p.m. New York City Time on the third Business
Day immediately preceding the Put Option Exercise Date, at its Corporate
Trust Office, or at an office or agency maintained by the Company in the
Borough of Manhattan, The City of New York as contemplated by Section 2.03
of the Sixth Supplemental Indenture, the Notes to be repurchased with the
form entitled "Option to Elect Repayment" on the reverse of or otherwise
accompanying such Notes duly completed. Any such notice received by the
Trustee shall be irrevocable. All questions as to the validity, eligibility
(including time of receipt) and acceptance of the Notes for repayment shall
be determined by the Company, whose determination shall be final and
binding. The payment of the Note Repayment Price in respect of such Notes
shall be made no later than 12:00 noon, New York City time, on the Put
Option Exercise Date.
Usury. The interest rate on the Securities of this series shall in
no event be higher than the maximum rate permitted by New York law as the
same may be modified by United States law of general application.
Defeasance. The Indenture contains provisions for defeasance of
(a) the entire Indebtedness of this Security and (b) certain restrictive
covenants upon compliance by the Company with certain conditions set forth
therein.
Events of Default. If an Event of Default with respect to
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.
Amendment to Indenture; Waiver of Defaults. The Indenture permits
the Company and the Trustee, with the consent of the Holders of not less
than a majority in aggregate principal amount of the Securities of each
series issued under the Indenture then outstanding and affected, to execute
supplemental indentures adding any provisions to or changing in any manner
the rights of the Holders of each series so affected; provided that the
Company and the Trustee may not, without the consent of the Holder of each
outstanding Security affected thereby, (a) extend the final maturity of any
such Security, or reduce the principal amount thereof, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount
payable on redemption or repayment thereof, or change the currency of
payment thereof, or impair or affect the rights of any Holder to institute
suit for the payment; or (b) reduce the aforesaid percentage in principal
amount of Securities. The Indenture contains provisions permitting the
Holders of not less than a majority in aggregate principal amount of the
Securities of all series with respect to which a default under the
Indenture shall have occurred and be continuing (voting as one class), on
behalf of the Holders of all Securities of all such series, to waive
certain past defaults under the Indenture and their consequences with
certain conditions set forth therein. 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.
Obligations Unconditional. 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, premium, if any, and
interest, if any, on this Security at the time, place and rate, and in the
coin or currency, herein prescribed unless otherwise agreed between the
Company and the registered Holder of this Security.
Transfer and Exchange. As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of this Security is
registerable in the registry books of the Company, upon surrender of this
Security for registration of transfer at the office or agency of the
Company in any place where the principal of (and premium, if any) and
interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Trustee and duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations
and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in minimum denominations of $25 or any integral multiple of
$25 over such minimum denomination. 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.
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 Trustee and any agent of the Issuer 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 neither the Issuer, the Trustee nor any such agent shall be affected by
notice to the contrary.
Governing Law. This Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them
in the Indenture.
No reference herein to the Indenture and no provision of this Note
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 Note at the time and place and at the rate and
in the money herein prescribed.
No recourse shall be had for the payment of the principal of or
the interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or my the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
The Indenture imposes certain limitations on the ability of the
Company to, among other things, merge or consolidate with any other Person
or sell, assign, transfer or lease all or substantially all of its
properties or assets, and requires that the Company comply with certain
further covenants. All such covenants and limitations are subject to a
number of important qualifications and exceptions. The Company must report
periodically to the Trustee on compliance with the covenants in the
Indenture.
The Notes of this series are issuable only in registered form
without coupons denominations of $[25] and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes are exchangeable for a like aggregate principal amount of
Notes of a different authorized denomination, as requested by the Holder
surrendering the same.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay $____ principal amount of the within Note, pursuant to its
terms, on the "Put Option Exercise Date," together with any interest
thereon accrued but unpaid to the date of repayment, to the undersigned at:
(Please print or type name and address of the undersigned)
and to issue to the undersigned, pursuant to the terms of the Indenture, a
new Note or Notes representing the remaining aggregate principal amount of
this Note.
For this Option to Elect Repayment to be effective, this Note with
the Option to Elect Repayment duly completed must be received by the
Trustee at c/o _______________________________________________, no later
than 5:00 p.m. on the third Business Day immediately preceding [ ].
Dated: _________________________ Signature: _______________________________
Signature Guarantee: _____________________
Note: The signature to this Option to Elect Repayment must
correspond with the name as written upon the face of the within Note
without alteration or enlargement or any change whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
_______________________________________________________________________________
_______________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Date: _____________
Signature:
______________________Signature
Guarantee: ____________________
(Sign exactly as your name appears on the other side of this Note)
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
By: ______________________
Name
Title:
___________________________
as Trustee
By: _______________________
Name
Title:
Attest:
By: ____________________________
Name
Title:
