EXHIBIT 4.5
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XXXXXX INDUSTRIES, INC.,
as Issuer,
and
XXXXXX INDUSTRIES LTD.,
as Guarantor,
ZERO COUPON CONVERTIBLE
SENIOR DEBENTURES DUE 2021
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 21, 2002
Bank One, N.A.,
as Trustee
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This FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental
Indenture"), dated as of June 21, 2002, is among Xxxxxx Industries, Inc., a
Delaware corporation, as issuer (the "COMPANY"), Xxxxxx Industries, Ltd., a
Bermuda exempted company, as guarantor (the "GUARANTOR"), and Bank One, N.A., a
national banking association, as trustee (the "TRUSTEE").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee entered into an
Indenture, dated as of June 20, 2000, as amended and supplemented by the First
Supplemental Indenture thereto, dated as of July 5, 2000 (as so amended and
supplemented, the "Indenture"), pursuant to which the Company issued
$1,381,200,000 in aggregate principal amount at maturity of Zero Coupon
Convertible Senior Debentures due 2021 (each a "Security", collectively the
"Securities");
WHEREAS, the Company is party to an Agreement and Plan of
Merger, dated as of January 2, 2002, by and among the Company, the Guarantor,
Nabors US Holdings Inc., a corporation duly organized and existing under the
laws of the State of Delaware (herein called "US Holdings") and Nabors
Acquisition Corp. VIII, a corporation duly organized and existing under the laws
of the State of Delaware (herein called "NAC8") (such agreement is herein called
the "Merger Agreement");
WHEREAS, US Holdings assigned all of its right, title and
interest, in, to and under the Merger Agreement to Nabors International Finance
Ltd., an exempted company duly organized and existing under the laws of the
Islands of Bermuda, and NAC8 assigned all of its right, title and interest, in,
to and under the Merger Agreement to Nabors Acquisition Corp. IX, a corporation
duly organized and existing under the laws of the State of Delaware (herein
called "NAC9");
WHEREAS, pursuant to the terms and conditions of the Merger
Agreement, the Company will merge with and into NAC9, with the Company being the
surviving corporation (herein called the "Merger" and the date on which the
Merger becomes effective by filing a Certificate of Merger with the Secretary of
State of the State of Delaware is herein called the "Merger Date");
WHEREAS, as a result of the Merger the Company will be an
indirect, wholly owned subsidiary of the Guarantor and each share of Common
Stock shall convert into the right to receive one common share, par value $.001
per share, of the Guarantor ("Guarantor Common Shares");
WHEREAS, pursuant to Section 11.14 of the Indenture, the
Company and the Guarantor desire to execute this First Supplemental Indenture to
provide, among other things, that each Security (as defined in the Indenture)
shall, from and after the Merger Date, be convertible into such number of
Guarantor Common Shares as would be received by a holder of a number of shares
of Common Stock issuable upon conversion of such Security immediately prior to
the Merger;
WHEREAS, the Guarantor desires to issue a guarantee to the
Holders of the Securities as provided in this First Supplemental Indenture;
WHEREAS, Section 9.01(4) provides that the Company may enter
into one or more supplemental indentures without the written consent of any
Holders to make any change that does not adversely affect the right of any
Holder;
WHEREAS, the respective Board of Directors of the Company and
of the Guarantor (or a duly authorized committee thereof) has duly adopted
resolutions authorizing the Company and the Guarantor, respectively, to execute
and deliver this First Supplemental Indenture; and
WHEREAS, all the conditions and requirements necessary to make
this First Supplemental Indenture, when duly executed and delivered, a valid and
binding agreement in accordance with its terms for the purposes herein
expressed, have been performed and fulfilled.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises provided for herein
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
RELATION TO INDENTURE
SECTION 1.1 RELATION TO INDENTURE.
This First Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION 1.2 DEFINITIONS.
For all purposes of this First Supplemental Indenture, except as
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined in this First
Supplemental Indenture shall have the respective meanings assigned to them in
the Indenture; and
(2) All references in this First Supplemental Indenture to
Articles and Sections, unless otherwise specified, refer to the corresponding
Articles and Sections of this First Supplemental Indenture.
"Guarantor" means Xxxxxx Industries Ltd., an exempted company
duly organized and existing under the laws of the Islands of Bermuda.
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"Guarantee" means any of the unconditional and unsubordinated
guarantees by the Guarantor of the due and punctual payment of Principal Amount,
Issue Price, accrued Original Discount, Redemption Price, Purchase Price,
Fundamental Change Purchase Price, Liquidated Damages, if any, and interest, if
any on the Securities and all other obligations of the Company pursuant to this
Indenture when and as the same shall become due and payable, whether at stated
maturity, by acceleration, call for redemption, upon a repurchase date or
otherwise in accordance with the terms of the Securities and this Indenture.
SECTION 1.3 AMENDMENT OF DEFINITIONS IN THE INDENTURE.
The following definitions in the Indenture are hereby amended by
deleting such definitions in their entirety and substituting in place thereof
the following:
"BOARD OF DIRECTORS" means either the board of directors of
each of the Company and the Guarantor or any duly authorized committee
of such board.
"COMMON STOCK" means any stock of any class of the Guarantor
which has no preference in respect of dividends or of amounts payable
in the event of a voluntary or involuntary liquidation, dissolution or
winding up of the Guarantor and which is not subject to redemption by
the Guarantor. Subject to the provisions of Section 11.14 hereof,
however, shares issuable upon conversion of the Securities shall
include only Common Shares, par value $.001 per share, of the Guarantor
as such shares exist on the date of this Indenture or on the date of
any Supplemental Indenture hereto or shares of any class or classes
resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Guarantor and which are not subject to redemption
by the Guarantor; PROVIDED that if at any time there shall be more than
one such resulting class, the shares of each such class then so
issuable pursuant to the terms hereof shall be substantially in the
proportion which the total number of shares of such class resulting
from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"OFFICER" means the Chairman of the Board, any Vice Chairman,
the President, any Vice President, the Treasurer or the Secretary or
any Assistant Secretary of the Company or the Guarantor, as applicable.
"OFFICERS' CERTIFICATE" means a written certificate containing
the information specified in Sections 13.04 and 13.05, signed in the
name of the Company or the Guarantor, as applicable, by its Chairman of
the Board, a Vice Chairman, its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Controller, an Assistant
Controller, its Corporate Secretary or an Assistant Corporate
Secretary, and delivered to the Trustee.
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"OPINION OF COUNSEL" means a written opinion containing the
information specified in Sections 13.04 and 13.05 from legal counsel
who is acceptable to the Trustee. The counsel may be an employee of, or
counsel to, the Company, the Guarantor or the Trustee.
ARTICLE 2
EXCHANGE AND REGISTRATION; CONVERSION ARRANGEMENT;
REPURCHASE RIGHTS
SECTION 2.1 EXCHANGE AND REGISTRATION.
The third paragraph of Section 2.06(a) of the Indenture is hereby
amended by deleting it in its entirety and substituting in place thereof the
following:
All Securities presented for registration of transfer or for
exchange into like Securities, repurchase, redemption or conversion
into Common Stock or payment shall (if so required by the Company, the
Guarantor, the Trustee, the Registrar or any co-registrar) be duly
endorsed by, or be accompanied by a written instrument or instruments
of transfer in form satisfactory to the Company, the Guarantor and the
Trustee, duly executed by the Holder or such Holder's attorney duly
authorized in writing.
The fifth paragraph of Section 2.06(a) of the Indenture is hereby
amended by deleting it in its entirety and substituting in place thereof the
following:
None of the Company, the Guarantor, the Trustee, the Registrar
or any co-registrar shall be required to exchange for like Securities
or register a transfer of (a) any Securities for a period of 15 days
next preceding the mailing of notice of Securities to be redeemed, or
(b) any Securities or portions thereof selected or called for
redemption, or (c) any Securities or portion thereof surrendered for
conversion into Common Stock, or (d) any Securities or portion thereof
surrendered for repurchase or redemption (and not withdrawn) pursuant
to Section 3.08 or 3.09 hereof, respectively.
SECTION 2.2 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
The right of the Company to arrange for the purchase and conversion
into Common Stock of any Securities called for redemption by an agreement with
one or more investment
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bankers or other purchasers set forth in Section 3.07 of the Indenture shall
also be exercisable by the Guarantor.
SECTION 2.3 REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER.
In the event the Company elects, pursuant to Section 3.08 of the
Indenture and pursuant to a Company Notice, to pay the Purchase Price to be paid
as of such Repurchase Date, in whole or in part, in Common Stock, the Guarantor
shall cooperate with the Company in making such election, including, without
limitation, making available such number of shares of Common Stock as are
necessary to permit the Company to consummate such purchases pursuant to such
election.
SECTION 2.4 COVENANT TO COMPLY WITH SECURITIES LAWS UPON REPURCHASE.
Section 3.13 of the Indenture is hereby amended by deleting it in its
entirety and substituting in place thereof the following:
SECTION 3.13 COVENANT TO COMPLY WITH SECURITIES LAWS UPON
REPURCHASE OF SECURITIES
In connection with any repurchase of Securities under Section
3.08 or 3.09 hereof, the Company and the Guarantor, as applicable,
shall (i) comply with Rule 13e-4 (which term, as used herein, includes
any successor provision thereto) under the Exchange Act, if applicable,
(ii) file the related Schedule 13E-4 (or any successor schedule, form
or report) under the Exchange Act, if applicable, and (iii) otherwise
comply with all Federal and state securities laws so as to permit the
rights and obligations under Sections 3.08 and 3.09 to be exercised in
the time and in the manner specified in Sections 3.08 and 3.09.
SECTION 2.5 REPAYMENT TO THE COMPANY AND THE GUARANTOR.
Section 3.14 of the Indenture is hereby amended by deleting it in its
entirety and substituting in place thereof the following:
SECTION 3.14. REPAYMENT TO THE COMPANY AND THE GUARANTOR.
The Trustee and the Paying Agent shall return to the Company
and the Guarantor, as applicable, any cash or shares of Common Stock
that remain unclaimed as provided in paragraph 14 of the Securities,
together
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with interest or dividends, if any, thereon, held by them for the
payment of a Purchase Price or Fundamental Change Purchase Price, as
the case may be, together with Liquidated Damages, if any; PROVIDED,
HOWEVER, that to the extent that the aggregate amount of cash or shares
of Common Stock deposited by the Company or the Guarantor pursuant to
Section 3.11 hereof exceeds the aggregate Purchase Price or Fundamental
Change Purchase Price, as the case may be, of the Securities or
portions thereof which the Company is obligated to repurchase as of the
Repurchase Date or Fundamental Change Repurchase Date, as the case may
be, together with Liquidated Damages, if any, then promptly after the
Business Day following the Repurchase Date or Fundamental Change
Repurchase Date, as the case may be, the Trustee and the Paying Agent
shall return any such excess to the Company or the Guarantor, as
applicable, together with interest or dividends, if any, thereon.
ARTICLE 3
REPORTS BY GUARANTOR
SECTION 3.1 FINANCIAL INFORMATION; SEC REPORTS.
Section 4.02 of the Indenture is hereby amended by deleting it in its
entirety and substituting in place thereof the following:
SECTION 4.02. FINANCIAL INFORMATION; SEC REPORTS.
The Company and the Guarantor will each deliver to the Trustee
(a) as soon as available and in any event within 120 days after the end
of each fiscal year of the Company or the Guarantor, as applicable (i)
a consolidated balance sheet of the Company and its Subsidiaries and
the Guarantor and its Subsidiaries, as applicable, as of the end of
such fiscal year and the related consolidated statements of operations,
stockholders' equity and cash flows for such fiscal year, all reported
on by an independent public accountant of nationally recognized
standing and (ii) a report containing a management's discussion and
analysis of the financial condition and results of operations and a
description of the business and properties of the Company or the
Guarantor, as applicable, and (b) as soon as available and in any event
within 60 days after the end of each of the first three quarters of
each fiscal year of the Company or the Guarantor, as applicable (i) an
unaudited consolidated financial report for such quarter and (ii) a
report containing a management's discussion and analysis of the
financial condition and results of operations of the Company or the
Guarantor, as applicable; PROVIDED that the foregoing shall not be
required for either the Company or the Guarantor for any fiscal year or
quarter, as the case may be, with respect to which either the Company
or the Guarantor files or expects to file
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with the Trustee an annual or quarterly report, as the case may be,
pursuant to the third paragraph of this Section 4.02.
At any time the Guarantor is not subject to either Section 13
or 15(d) of the Exchange Act, the Guarantor shall at the request of any
Holder (or holders of Common Stock issued upon conversion of the
Securities) provide to such Holder (or holders of such Common Stock)
and any prospective purchaser designated by such Holders (or holders of
such Common Stock), as the case may be, such information, if any,
required by Rule 144A(d)(4) under the Securities Act.
Each of the Company and the Guarantor, as applicable, shall
file with the Trustee, within 15 days after it files such annual and
quarterly reports, information, documents and other reports with the
SEC, copies of its annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the SEC may by rules and regulations prescribe) which each of the
Company and the Guarantor, as applicable, is required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information
contained therein or determinable from the information contained
therein, including the Company's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on
Officers' Certificates).
ARTICLE 4
CERTIFICATE OF COMPLIANCE
SECTION 4.1 COMPLIANCE CERTIFICATE.
Section 4.03 of the Indenture is hereby amended by deleting it in its
entirety and substituting in place thereof the following:
SECTION 4.03. COMPLIANCE CERTIFICATE.
The Company and the Guarantor will each deliver to the Trustee
within 120 days after the end of each fiscal year of the Company and
the Guarantor, an Officers' Certificate in which one of the two
Officers signing such certificate is either the principal executive
officer, principal financial officer or principal accounting officer of
the Company or the Guarantor, as applicable, stating whether or not to
the knowledge of the signers thereof the Company or the Guarantor, as
applicable, is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and
if Company or the Guarantor, as applicable, shall be in default,
specifying all such defaults and the nature and status thereof of which
the signers may have knowledge.
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The Company and the Guarantor will each deliver to the
Trustee, as soon as possible and in any event within five days, upon
becoming aware of any default or any Event of Default, an Officers'
Certificate specifying with particularity such Default or Event of
Default and further stating what action the Company or the Guarantor,
as applicable, has taken, is taking or proposes to take with respect
thereto.
Any notice required to be given under this Section 4.03 shall
be delivered to the Trustee at its Corporate Trust Office.
ARTICLE 5
REGISTRATION RIGHTS
SECTION 5.1 REGISTRATION RIGHTS.
Section 4.08 of the Indenture is hereby amended by deleting it in its
entirety and substituting in place thereof the following:
SECTION 4.08 REGISTRATION RIGHTS.
(a) The Company and the Guarantor agree that the Holders (and
any Person that has a beneficial interest in a Security) from time to
time of Registrable Securities (as such term is defined in the
Registration Rights Agreement) are entitled to the benefits of the
Registration Rights Agreement. Pursuant to the Registration Rights
Agreement, the Company has agreed for the benefit of the Holders from
time to time of Registrable Securities, at the Company's expense, to
use all reasonable best efforts (i) to file within 90 days after the
first date of original issuance of the Securities, a shelf registration
statement (the "Shelf Registration Statement") with the Commission with
respect to resales of the Restricted Securities, (ii) to cause such
Shelf Registration Statement to be declared effective by the Commission
not later than 180 days after the first date of original issuance of
the Securities, and (iii) to maintain such Shelf Registration Statement
continuously effective under the Securities Act subject to and in
accordance with the terms of the Registration Rights Agreement.
Liquidated damages ("LIQUIDATED DAMAGES") with respect to the
Securities shall be assessed if a Registration Default (as defined in
the Registration Rights Agreement) occurs.
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(b) The Company shall pay Liquidated Damages due pursuant to
clause (a) of this Section 4.08 to the Holders in cash in the amounts
and on the dates specified in the Registration Rights Agreement and in
this Indenture.
Whenever in this Indenture there is mentioned, in any context,
any payment in respect of any Security, such mention shall be deemed to
include mention of the payment of Liquidated Damages provided for in
this Section to the extent that, in such context, Liquidated Damages
are, were or would be payable in respect thereof pursuant to the
provisions of this Section 4.08, and express mention of the payment of
Liquidated Damages (if applicable) in any provisions hereof shall not
be construed as excluding Liquidated Damages in those provisions hereof
where such express mention is not made.
If Liquidated Damages become payable to the Holders pursuant
to the Registration Rights Agreement, at least five Business Days prior
to the date on which such Liquidated Damages are payable, the Company
shall deliver to the Trustee a certificate to that effect stating (i)
the amount of such Liquidated Damages that is payable and (ii) the date
on which such amount is payable. Unless and until a Trust Officer
receives at the Corporate Trust Office such a certificate, the Trustee
may assume without inquiry that no such amount is payable.
ARTICLE 6
EFFECT OF THE MERGER ON CONVERSION PRIVILEGE
SECTION 6.1 CONVERSION PRIVILEGE.
The Company and the Guarantor covenant and agree for the benefit of
each Holder that each Security shall be convertible into such number of shares
of Common Stock (as such term is defined in this First Supplemental Indenture)
as would have been received by a holder of a number of shares of Common Stock
(as such term was defined prior to the execution of this First Supplemental
Indenture) issuable upon conversion of such Securities immediately prior to the
Merger. The obligations of the Company to issue shares of Common Stock set forth
in Article 11 of the Indenture, and all obligations set forth in Article 11
related thereto, shall be binding upon the Guarantor with respect to the Common
Stock and the Guarantor shall comply with such provisions as set forth in
Article 11.
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SECTION 6.2 ADJUSTMENTS TO CONVERSION RATE.
From and after the Merger Date, the provisions providing for, and
relating to, adjustments to the Conversion Rate set forth in Sections 11.06,
11.07, 11.08, 11.09, 11.10, 11.12, 11.15, 11.16, 11.17, 11.18, 11.19 and 11.20
shall continue to apply with the same force and effect as such provisions had
prior to the Merger Date and shall be binding on the Guarantor. The Guarantor
shall comply with such provisions as set forth in Article 11.
SECTION 6.3 NOTICES.
The Guarantor shall provide notice to the Holders and the Trustee of
the events set forth in Sections 11.11 and 11.13 in accordance with the terms of
such sections.
SECTION 6.4 EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR
TRANSFER.
The obligation set forth in Section 11.14 to execute a supplemental
indenture with respect to the Indenture and the Securities upon the occurrence
of any of the events set forth in Section 11.14 shall be binding on the
Guarantor and the Guarantor shall comply with the terms and conditions set forth
in Section 11.14
ARTICLE 7
GUARANTEE
SECTION 7.1 GUARANTEE. The Indenture is hereby amended by adding a new
Article 14 as follows:
ARTICLE 14
GUARANTEE
SECTION 14.01. GUARANTEE.
The Guarantor hereby irrevocably and unconditionally
Guarantees to each Holder of a Security authenticated and delivered by
the Trustee that: (i) the Principal Amount, Issue Price, accrued
Original Discount, Redemption Price, Purchase Price, Fundamental Change
Purchase Price, Liquidated Damages, if any, and interest, if any, on
the Securities as required under the Indenture and the Securities, to
the extent lawful, and all other obligations of the Company to the
Holders or the Trustee under this Indenture and the Securities will be
promptly paid in full, all in accordance with the terms of this
Indenture and the Securities; and (ii) in case of any extension of time
of payment or renewal of any Securities or any of such other
obligations, that the Securities will be promptly paid in full when due
in accordance with the terms of such extension or renewal, whether at
stated maturity, by acceleration or otherwise.
The Guarantor hereby further agrees that its obligations under
this Indenture and the Securities shall be unconditional, regardless of
the validity, legality or enforceability of this Indenture or the
Securities, the absence of any action to enforce
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this Indenture or the Securities, any waiver or consent by any Holder
with respect to any provisions this Indenture or the Securities, any
modification or amendment of, or supplement of, this Indenture or the
Securities. The Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and
covenants that its Guarantee will not be discharged except by complete
performance by the Company of its obligations under the Indenture.
Upon making any payment with respect to the Company hereunder,
the Guarantor shall be subrogated to the rights of the payee against
the Company with respect to such payment; provided that the Guarantor
shall not enforce any payment by way of subrogation or contribution
until all obligations of the Company under this Indenture have been
paid in full.
SECTION 14.02. RELEASE OF GUARANTEE.
Notwithstanding anything in this Article 14 to the contrary,
concurrently with the payment in full of (i) the Principal Amount at
Stated Maturity or such other amounts as cause the Indenture to cease
to be of further effect pursuant to Section 8.01 of the Indenture and
(ii) all other obligations of the Company under this Indenture, the
Guarantor shall be released from and relieved of its obligations under
this Article 14. Upon the delivery by the Company to the Trustee of an
Officers' Certificate and an Opinion of Counsel to the effect that the
transaction giving rise to the release of this Guarantee was made by
the Company in accordance with the provisions of this Indenture and the
Securities, the Trustee shall execute any documents reasonably required
in order to evidence the release of the Guarantor from its obligations
under this Guarantee. If any of the obligations to pay the Principal
Amount, Issue Price, accrued Original Discount, Redemption Price,
Purchase Price, Fundamental Change Purchase Price, Liquidated Damages,
if any, and interest, if any on the Securities and all other
obligations of the Company are revived and reinstated after the
termination of this Guarantee, then all of the obligations of the
Guarantor under this Guarantee shall be revived and reinstated as if
this Guarantee had not been terminated until such time as such amounts
on the Securities and all other obligations of the Company under the
Indenture are paid in full, and the Guarantor shall enter into an
amendment to this Guarantee, reasonably satisfactory to the Trustee,
evidencing such revival and reinstatement.
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ARTICLE 8
MISCELLANEOUS PROVISIONS
SECTION 8.1 RATIFICATION OF INDENTURE.
Except as expressly modified or amended hereby, the Indenture continues
in full force and effect and is in all respects confirmed and preserved.
SECTION 8.2 EFFECTIVENESS.
This First Supplemental Indenture shall be effective as of the date
first written above, provided, however, that the provisions contained in
Articles 1 through 7 (inclusive) hereof shall become effective as of the Merger
Date. In the event that the Merger Agreement is terminated in accordance with
its terms, this First Supplemental Indenture shall automatically become null and
void and the Company and Trustee shall continue to comply with the Indenture. On
or promptly following the Merger Date, the Company shall furnish to the Trustee
an Officer's Certificate certifying that the Merger has occurred and that
Articles 1 through 7 (inclusive) hereof have become effective.
SECTION 8.3 CONFLICT WITH THE TRUST INDENTURE ACT.
If any provision of this First Supplemental Indenture modifies or
excludes any provision of the Trust Indenture Act that is required under such
Act to be part of and govern this First Supplemental Indenture, the latter
provision of the Trust Indenture Act shall control. If any provision hereof
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision of the Trust Indenture Act shall be
deemed to apply to this First Supplemental Indenture, as so modified or
excluded, as the case may be.
SECTION 8.4 SECURITIES DEEMED CONFORMED.
As of the date hereof, the provisions of each Security then outstanding
shall be deemed to be conformed, without the necessity for any reissuance or
exchange of such Security or any other action on the part of the Holders, the
Company, the Guarantor or the Trustee, so as to reflect this First Supplemental
Indenture.
SECTION 8.5 NO ADDITIONAL TRUSTEE OBLIGATIONS.
No duties, responsibilities or liabilities are assumed, or shall be
construed to be assumed, by the Trustee by reason of this First Supplemental
Indenture. This First Supplemental Indenture is executed and accepted by the
Trustee subject to all the terms and conditions set forth in the Indenture with
the same force and effect as if those terms and conditions set forth in the
Indenture with the same force and effect as if those terms and conditions were
repeated at length herein and made applicable to the Trustee with respect
hereto.
SECTION 8.6 SUCCESSORS.
All agreements of the Company, the Guarantor and the Trustee in this
First Supplemental Indenture and in the Indenture shall bind their respective
successors.
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SECTION 8.7 BENEFITS OF FIRST SUPPLEMENTAL INDENTURE.
Nothing in this First Supplemental Indenture, express of implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this First Supplemental Indenture.
SECTION 8.8 GOVERNING LAW.
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
AND ENFORCE THIS FIRST SUPPLEMENTAL INDENTURE.
SECTION 8.9 COUNTERPARTS.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 8.10 TRUSTEE.
The Trustee is not responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this First Supplemental Indenture or
for or in respect of the recitals contained herein, which are made solely by the
Company and the Guarantor.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have cause this First
Supplemental Indenture to be duly executed as of the first day and year first
written above.
ISSUER:
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
President and Chief Operating Officer
GUARANTOR:
XXXXXX INDUSTRIES LTD.
By: /s/ Xxxxxx XxXxxxxxx
Xxxxxx XxXxxxxxx
Vice President - Administration
TRUSTEE:
BANK ONE, N.A., as Trustee
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Officer
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