Exhibit 4(c)
_________________________________________________________
SUPPLEMENTAL INDENTURE NO. 7
BY
AND
BETWEEN
XxXXXXXX'X CORPORATION
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly, First Union National Bank),
as Trustee
________________
Dated, [ ], 2002
________________
SUPPLEMENTAL TO SENIOR DEBT SECURITIES INDENTURE
DATED, AS OF OCTOBER 19, 1996
_________________________________________________________
XxXXXXXX'X CORPORATION
SUPPLEMENTAL INDENTURE NO. 7
Dated, [ ], 2002
Series of
Medium-Term Notes, Series H
$1,975,000,000
Supplemental Indenture No. 7, dated [ ], 2002, by and between
XxXXXXXX'X CORPORATION, a corporation organized and existing under the laws of
the State of Delaware (hereinafter sometimes referred to as the "Company"), and
WACHOVIA BANK, NATIONAL ASSOCIATION (formerly, First Union National Bank, a
national banking association), authorized to accept and execute trusts
(hereinafter sometimes referred to as the "Trustee"),
W I T N E S S E T H:
WHEREAS, The Company and the Trustee have executed and delivered a
Senior Debt Securities Indenture, dated, as of October 19, 1996 (as amended or
supplemented from time to time, the "Indenture");
WHEREAS, Section 10.01 of the Indenture provides for the Company, when
authorized by its Board of Directors, and the Trustee to enter into an indenture
supplemental to the Indenture to establish the form or terms of Debt Securities,
as permitted by Sections 2.01 and 2.02 of the Indenture; and
WHEREAS, Sections 2.01 and 2.02 of the Indenture provide for Debt
Securities of any series to be established pursuant to an indenture supplemental
to the Indenture;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
series of Debt Securities provided for herein, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of such series of
Debt Securities, as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.01. This Supplemental Indenture No. 7 constitutes an
integral part of the Indenture.
SECTION 1.02. (a) For all purposes of this Supplemental Indenture No.
7, except as otherwise expressly provided or unless the context otherwise
requires, all capitalized terms used and not defined herein shall have the
meanings assigned to them in the Indenture or in Exhibits A and B hereto.
(b) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture No. 7; and
(c) The terms "hereof," "herein," "hereto," "hereunder" and
"herewith" refer to this Supplemental Indenture No. 7.
ARTICLE TWO
THE SERIES OF DEBT SECURITIES
SECTION 2.01. (a) There shall be a series of Debt Securities issuable
in registered form (the "Notes") limited to an aggregate initial public offering
price or purchase price of $1,975,000,000, or the equivalent thereof in one or
more foreign currencies, including the Euro, as designated by the Company (the
"Specified Currency"). The Notes shall be designated the "Medium-Term Notes,
Series H, Due from 1 Year to 60 Years from Date of Issue".
(b) Each Note shall bear interest either at a fixed rate (a "Fixed
Rate Note"), which may be zero in the case of Original Issue Discount Notes (as
defined below), or at a floating rate (a "Floating Rate Note") or at a rate
determined by reference to an Index (as defined below) in the case of certain
Indexed Notes (as defined below).
SECTION 2.02. Fixed Rate Notes and Floating Rate Notes shall contain
substantially the terms and provisions set forth in either the form of Series H
Fixed Rate Note or the form of Series H Floating Rate Note attached hereto as
Exhibits A and B, respectively, or such other forms of Notes specified in an
Officers' Certificate pursuant to duly adopted resolutions of the Board of
Directors of the Company. All of the terms and provisions of such Notes are
hereby incorporated by reference herein.
SECTION 2.03. In addition to the terms described in Section 2.02, a
Note shall contain the following terms to be specified in a Pricing Supplement:
(a) the principal amount and Specified Currency for such Note
(and, if the Specified Currency is other than U.S. dollars, certain
other terms relating to such Note and such Specified Currency,
including the authorized denominations of such Note); (b) whether such
Note is a Fixed Rate Note, Floating Rate Note or an Indexed Note (as
defined below) as to which interest is determined by reference to an
Index; (c) the price (expressed as a percentage of the aggregate
principal amount thereof) at which such Note will be issued (the
"Issue Price"); (d) the date on which such Note will be issued (the
"Original Issue Date"); (e) the date on which such Note will mature
(the "Stated Maturity"); (f) if such Note is a Fixed Rate Note, the
rate per annum at which such Note will bear interest, if any, and the
dates on which interest will be payable if other than February 15 and
August 15 (each an "Interest Payment Date"); (g) if such Note is a
Floating Rate Note, the Base Rate, the Initial
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Interest Rate, the Interest Reset Period, the Interest Payment Dates,
the Maximum Interest Rate, if any, the Minimum Interest Rate, if any,
the Spread or Spread Multiplier, if any (all as defined in Sections
2.02 and 2.06 herein), and any other terms relating to the particular
method of calculating the interest rate for such Note; (h) whether
such Note is an Original Issue Discount Note; (i) if such Note is an
Indexed Note, the manner in which the principal amount of the Note
payable at Stated Maturity and/or the interest amount payable will be
determined (other than as described in Section 2.07 hereof); (j)
whether such Note may be redeemed at the option of the Company, or
repaid at the option of the Holder, prior to Stated Maturity and, if
so, the provisions (other than the redemption and prepayment
provisions specified in Sections 2.02 hereof) relating to such
redemption or repayment, including, in the case of an Original Issue
Discount Note, Indexed Note or Amortizing Note (as defined below), the
information necessary to determine the amount due upon redemption or
repayment; (k) if such Note is an Amortizing Note, information
necessary to determine the repayment schedule, including the manner in
which payments thereon will be applied to interest and the reduction
of unpaid principal; and (l) any other terms of such Note not
inconsistent with the provisions of the Indenture.
SECTION 2.04. Bank One Trust Company, N.A., Xxx Xxxx Xxx Xxxxx,
Xxxxxxx, Xxxxxxxx, is hereby initially appointed as Authenticating Agent,
Registrar, Paying Agent and Calculation Agent with respect to the Notes.
SECTION 2.05. With respect to any Notes issued hereunder, (a) the term
"Original Issue Discount Note" shall mean (i) a Note, including any such Note
whose interest rate is zero, that has a stated redemption price at maturity that
exceeds its Issue Price by at least 0.25% of its aggregate principal amount,
multiplied by the number of full years from the Original Issue Date to the
Stated Maturity of such Note; and (ii) any other Note designated by the Company
as issued with original issue discount for U.S. federal income tax purposes; and
(b) the term "Yield to Stated Maturity" shall mean the yield to Stated Maturity,
calculated at the time of issuance of the Notes or, if applicable, at the most
recent redetermination of interest on such Notes and calculated in accordance
with accepted financial practice.
SECTION 2.06. (a) With respect to any Notes hereunder, the term
"Indexed Note" shall mean a Note, the principal amount payable at Stated
Maturity of which (the "Indexed Principal Amount") and/or the interest amount
payable on which is determined by reference to a measure (the "Index") which
will be related to (i) the rate of exchange between the Specified Currency for
such Note and the other currency or composite currency (the "Index Currency")
specified in such Indexed Note (such Indexed Note, "Currency Indexed Note");
(ii) the difference in the price of a specified commodity (the "Indexed
Commodity") on specified dates (such Indexed Note, "Commodity Indexed Note");
(iii) the difference in the level of a specified stock index (the "Stock
Index"), which may be based on U.S. or foreign stocks, on specified dates
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(such Indexed Note, "Stock Indexed Note"); or (iv) such other objective price or
economic measures as are described in such Indexed Note.
(b) Unless otherwise specified in an Indexed Note, interest on such
Indexed Note will be payable by the Company based on the amount designated
therein as the "Face Amount" of such Indexed Note. Such Indexed Note will
describe whether the principal amount of such Indexed Note that would be payable
upon redemption or repayment prior to Stated Maturity will be the Face Amount of
such Indexed Note, the Indexed Principal Amount of such Indexed Note at the time
of redemption or repayment, or another amount described in such Indexed Note.
SECTION 2.07. With respect to any Notes hereunder, the term
"Amortizing Notes" shall mean any Note, payments in respect of which represent
interest due and the reduction of unpaid principal, as provided in such
Amortizing Note.
SECTION 2.08. Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) and clause (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes are registered at the
close of business on a special record date ("Special Record Date") for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Note and
the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee or any paying agent designated by the
Company an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee or with any paying agent
designated by the Company for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this Section provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be
not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first class postage prepaid, to each
Holder of Notes at his address as it appears in the Debt Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in
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whose names the Notes are registered on such Special Record Date and
shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest 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, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause, such payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section, each
Note delivered under this Supplemental Indenture No. 7 upon transfer
of or in exchange for or in lieu of any other Note shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
SECTION 2.09. The Place of Payment for the Notes shall be both The
City of New York, New York, and the City of Philadelphia, Pennsylvania.
SECTION 2.10. The terms and provisions contained in the form of the
Notes attached as Exhibits A and B hereto shall constitute, and are hereby
expressly made, a part of the Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery hereof, expressly agree
to such terms and provisions and to be bound thereby.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.01. The recitals of fact herein and in the Notes shall be
taken as statements of the Company and shall not be construed as made by the
Trustee.
SECTION 3.02. This Supplemental Indenture No. 7 shall be construed in
connection with and as a part of the Indenture.
SECTION 3.03. (a) If any provision of this Supplemental Indenture No.
7 limits, qualifies or conflicts with another provision of the Indenture
required to be included in indentures qualified under the Trust Indenture Act of
1939 (as in effect on the date of this Supplemental Indenture No. 7) by any of
the provisions of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939, such required provisions shall control.
(b) In case any one or more of the provisions contained in this
Supplemental Indenture No. 7 or in the Notes issued hereunder should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected, impaired, prejudiced or disturbed thereby.
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SECTION 3.04. Whenever in this Supplemental Indenture No. 7 either of
the parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Supplemental Indenture No. 7 contained by or on behalf of the Company or by
or on behalf of the Trustee shall bind and inure to the benefit of the
respective successors and assigns of such parties, whether so expressed or not.
Nothing in this Supplemental Indenture No. 7 or the Notes, expressed or implied,
shall give to any Person, other than the parties hereto, their successors
hereunder and the Holders of the Notes, any benefit or any legal or equitable
right, remedy or claim under this Supplemental Indenture No. 7.
SECTION 3.05. (a) This Supplemental Indenture No. 7 may be executed in
any number of counterparts, each of which so executed shall be deemed an
original, but all such counterparts shall together constitute but one and the
same instrument.
(b) The descriptive headings of the several Articles of this
Supplemental Indenture No. 7 were formulated, used and inserted herein for
convenience only and shall not be deemed to affect the meaning or construction
of any of the provisions hereof.
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IN WITNESS WHEREOF, XxXXXXXX'X CORPORATION has caused this
Supplemental Indenture No. 7 to be signed, acknowledged and delivered by its
President, Executive Vice President and Chief Financial Officer or Senior Vice
President and Treasurer and its corporate seal to be affixed hereunto and the
same to be attested by its Secretary or Assistant Secretary, and WACHOVIA BANK,
NATIONAL ASSOCIATION, as Trustee, has caused this Supplemental Indenture No. 7
to be signed, acknowledged and delivered by one of its Vice Presidents, and its
seal to be affixed hereunto and the same to be attested by one of its Authorized
Officers, all as of the day and year first written above.
XxXXXXXX'X CORPORATION
[CORPORATE SEAL]
By: __________________________
Xxxxxxx X. Xxxxxxx
Senior Vice President and Treasurer
Attest:
______________________________
Secretary
WACHOVIA BANK,
NATIONAL ASSOCIATION
as Trustee
[CORPORATE SEAL]
By: __________________________
Vice President
Attest:
______________________________
Authorized Officer
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STATE OF ILLINOIS )
) SS:
COUNTY OF DuPAGE )
On the ___ day of ______________, in the year two thousand two, before
me appeared Xxxxxxx X. Xxxxxxx to me personally known, who, being by me duly
sworn, did say that he resides in Chicago, Illinois, that he is a Senior Vice
President and Treasurer of XxXXXXXX'X CORPORATION, one of the corporations
described in and which executed the above instrument; that he knows the seal of
said corporation, that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
_______________________________
Notary Public
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STATE OF PENNSYLVANIA )
) SS:
COUNTY OF )
On the ___ day of ______________, in the year two thousand two, before
me appeared ___________ to be personally known, who, being by me duly sworn, did
say that he resides at ______________, that he is a Vice President of WACHOVIA
BANK, NATIONAL ASSOCIATION one of the corporations described in and which
executed the above instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
_______________________________
Notary Public
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