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EXHIBIT 4(b) & 4(c)
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HECHINGER COMPANY
and
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, Trustee
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FIRST SUPPLEMENTAL TRUST INDENTURE
Dated as of January 31, 1997
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Amending and Supplementing the
Trust Indenture
Dated as of October 1, 1992
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FIRST SUPPLEMENTAL TRUST INDENTURE
THIS FIRST SUPPLEMENTAL TRUST INDENTURE dated as of January
31, 1997 (the "First Supplemental Indenture"), by and between HECHINGER COMPANY
(the "Company"), a Delaware corporation, and FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, a national banking association duly incorporated and existing under
the laws of the United States of America (the "Trustee"), the trustee under the
Trust Indenture dated as of October 1, 1992 (the "Original Indenture") between
the Company and the Trustee, amends and supplements the Original Indenture.
Terms used and not defined herein have the same meanings as in
the Original Indenture.
Recitals
A. The definition of "Corporate Trust Office" set forth
in Section 1.1 of the Original Indenture reads in its entirety as follows:
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee shall, at
any particular time, be principally administered, which office is, at
the date as of which this Indenture is dated, located in the City of
Charlotte, North Carolina.
B. Section 3.2 of the Original Indenture reads in its
entirety as follows:
SECTION 3.2 Offices for Payments, etc. So long
as any Registered Securities are authorized for issuance pursuant to
this Indenture or are outstanding hereunder, the Issuer will maintain
in the City of Charlotte, North Carolina and/or the Borough of
Manhattan, City of New York, an office or agency where the Registered
Securities of each series may be presented for payment, where the
Securities of each series may be presented for exchange as is provided
in this Indenture and, if applicable, pursuant to Section 2.3 and
where the Registered Securities of each series may be presented for
registration of transfer as in this Indenture provided.
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If any Unregistered Securities are to be issued
hereunder, the Issuer will maintain one or more offices or agencies in
a city or cities located outside the United States (including any city
in which such an agency is required to be maintained under the rules
of any stock exchange on which the Securities of such series are
listed) where the Unregistered Securities, if any, of each series and
Coupons, if any, appertaining thereto may be presented for payment.
No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of
the Issuer within the United States nor will any payment be made by
transfer to an account in, or by mail to an address in, the United
States unless pursuant to applicable United States laws and
regulations then in effect such payment can be made without adverse
tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made
at an agency of the Issuer maintained in the City of Charlotte, North
Carolina and/or the Borough of Manhattan, City of New York, if such
payment in Dollars at each agency maintained by the Issuer outside the
United States for payment on such Unregistered Securities is illegal
or effectively precluded by exchange controls or other similar
restrictions.
The Issuer will maintain in the City of Charlotte,
North Carolina and/or the Borough of Manhattan, City of New York, an
office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining
thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of
the location of each such office or agency and of any change of
location thereof. In case the Issuer shall fail to maintain any
agency required by this Section to be located in the City of
Charlotte, North Carolina and/or Borough of Manhattan, City of New
York, or shall fail to give such notice of the location or of any
change in the location of any of the above agencies, presentations and
demands may be made and notices may be served at the Corporate Trust
Office of the Trustee and the Issuer hereby appoints the Trustee at
its Corporate Trust Office to receive all such presentations, demands
and notices.
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The Issuer may from time to time designate one or
more additional offices or agencies where the Securities of a series
and any Coupons appertaining thereto may be presented for payment,
where the Securities of that series may be presented for exchange as
provided in this Indenture and pursuant to Section 2.3 and where the
Registered Securities of that series may be presented for registration
of transfer as in this Indenture provided, and the Issuer may from
time to time rescind any such designation, as the Issuer may deem
desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to
maintain the agencies provided for in this Section. The Issuer will
give to the Trustee prompt written notice of any such designation or
rescission thereof.
C. Section 6.9 of the Original Indenture reads in its
entirety as follows:
SECTION 6.9 Persons Eligible for Appointment as
Trustee. The Trustee for each series of Securities hereunder shall at
all times be a corporation organized and doing business under the laws
of the United States of America or of any State or the District of
Columbia having a combined capital and surplus of at least $5,000,000,
and which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by Federal, State
or District of Columbia authority. Such corporation shall have its
principal place of business in the City of Charlotte, North Carolina
or the Borough of Manhattan, The City of New York if there be such a
corporation in such location willing to act upon reasonable and
customary terms and conditions. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section
6.10.
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The provisions of this Section 6.9 are in furtherance
of and subject to Section 310(a) of the Trust Indenture Act of 1939.
D. Section 8.1 of the Original Indenture provides, among
other things, that the Company and the Trustee may from time to time and at any
time, without the consent of the holders of any of the Debentures at the time
outstanding, enter into indentures supplemental to the Original Indenture to
make any other provisions as the Company may deem necessary or desirable if
such actions shall not adversely affect the interests of the Holders of the
Securities or Coupons. Section 8.4 of the Original Indenture provides that the
Trustee may rely upon an Officer's Certificate and an Opinion of Counsel as
conclusive evidence that any such supplemental indenture complies with the
provisions of the Original Indenture.
E. The Company desires to enter into this First
Supplemental Indenture to expand the number of corporations potentially
eligible to be Trustee by amending Sections 1.1, 3.2 and 6.9 of the Original
Indenture as hereinafter provided.
F. By its execution and delivery of this First
Supplemental Indenture, the Trustee acknowledges its receipt of and reliance
upon the Officer's Certificate and Opinion of Counsel attached hereto, which
Officer's Certificate and Opinion of Counsel are acceptable to the Trustee, to
the effect that this First Supplemental Indenture complies with the provisions
of the Original Indenture.
NOW, THEREFORE, in consideration of the premises, the Company
and the Trustee agree as follows:
1. Amendment of Section 1.1 of Original Indenture. The
definition of "Corporate Trust Office" in Section 1.1 of the Original Indenture
is hereby amended to read in its entirety as follows:
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee shall, at
any particular time, be principally administered.
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2. Amendment of Section 3.2 of Original Indenture. Section 3.2
of the Original Indenture is hereby amended to read in its entirety as follows:
SECTION 3.2 Offices for Payments, etc. So long
as any Registered Securities are authorized for issuance pursuant to
this Indenture or are outstanding hereunder, the Issuer will maintain
in a city located inside the United States, an office or agency where
the Registered Securities of each series may be presented for payment,
where the Securities of each series may be presented for exchange as
is provided in this Indenture and, if applicable, pursuant to Section
2.3 and where the Registered Securities of each series may be
presented for registration of transfer as in this Indenture provided.
If any Unregistered Securities are to be issued
hereunder, the Issuer will maintain one or more offices or agencies in
a city or cities located outside the United States (including any city
in which such an agency is required to be maintained under the rules
of any stock exchange on which the Securities of such series are
listed) where the Unregistered Securities, if any, of each series and
Coupons, if any, appertaining thereto may be presented for payment.
No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of
the Issuer within the United States nor will any payment be made by
transfer to an account in, or by mail to an address in, the United
States unless pursuant to applicable United States laws and
regulations then in effect such payment can be made without adverse
tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made
at an agency of the Issuer maintained in a city located inside the
United States, if such payment in Dollars at each agency maintained by
the Issuer outside the United States for payment on such Unregistered
Securities is illegal or effectively precluded by exchange controls or
other similar restrictions.
The Issuer will maintain in a city located inside the
United States, an office or agency where notices and demands to or
upon the Issuer in respect of the Securities of
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any series, the Coupons appertaining thereto or this Indenture may be
served.
The Issuer will give to the Trustee written notice of
the location of each such office or agency and of any change of
location thereof. In case the Issuer shall fail to maintain any
agency required by this Section, or shall fail to give such notice of
the location or of any change in the location of any of the above
agencies, presentations and demands may be made and notices may be
served at the Corporate Trust Office of the Trustee and the Issuer
hereby appoints the Trustee at its Corporate Trust Office to receive
all such presentations, demands and notices.
The Issuer may from time to time designate one or
more additional offices or agencies where the Securities of a series
and any Coupons appertaining thereto may be presented for payment,
where the Securities of that series may be presented for exchange as
provided in this Indenture and pursuant to Section 2.3 and where the
Registered Securities of that series may be presented for registration
of transfer as in this Indenture provided, and the Issuer may from
time to time rescind any such designation, as the Issuer may deem
desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to
maintain the agencies provided for in this Section. The Issuer will
give to the Trustee prompt written notice of any such designation or
rescission thereof.
3. Amendment of Section 6.9 of Original Indenture. Section 6.9
of the Original Indenture is hereby amended to read in its entirety as follows:
SECTION 6.9 Persons Eligible for Appointment as
Trustee. The Trustee for each series of Securities hereunder shall at
all times be a corporation organized and doing business under the laws
of the United States of America or of any State or the District of
Columbia having a combined capital and surplus of at least $5,000,000,
and which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by Federal, State
or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to
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law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.
The provisions of this Section 6.9 are in furtherance
of and subject to Section 310(a) of the Trust Indenture Act of 1939.
4. Indenture to Remain in Effect. Except as amended by this
First Supplemental Indenture, the Original Indenture shall remain in full force
and effect in accordance with its terms.
IN WITNESS WHEREOF, the Company and the Trustee have executed
and delivered this First Supplemental Indenture as of the date first above
written.
HECHINGER COMPANY
Attest:
/S/ Xxxx X. Xxxxx By: /S/ W. Xxxxx XxXxxxxxxx
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Name: Xxxx X. Xxxxx Name: W. Xxxxx XxXxxxxxxx
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Title: Senior Vice President, Title: Executive Vice President and
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Treasurer and Secretary Chief Financial Officer
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(Seal)
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, Trustee
Attest:
/S/ Xxxxxx Xxxxxxxxx By: /S/ Xxxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxxx
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Title: Vice President Title: Trust Officer
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(Seal)
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Acknowledgements
STATE OF Maryland )
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COUNTY OF Prince Georges )
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On this 30th day of January, 1997, before me, the undersigned
Notary Public, personally appeared W. Xxxxx XxXxxxxxxx, who acknowledged
himself to be the Executive Vice President and Chief Financial Officer of
Hechinger Company, a Delaware corporation and that he as such officer, being
authorized to do so, executed the foregoing First Supplemental Trust Indenture
for the purposes therein contained by signing the name of said corporation by
himself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/S/ Xxxxx X. Xxxx
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Notary Public
(SEAL) My commission expires: 0-0-00
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XXXXX XX Xxxxx Xxxxxxxx )
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COUNTY OF Mecklenburg )
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On this 30th day of January, 1997, before me, the undersigned
Notary Public, personally appeared Xxxxxxx Xxxxxx who acknowledged herself to
be a Trust Officer of First Union National Bank of North Carolina and that she
as such officer, being authorized to do so, executed the foregoing First
Supplemental Trust Indenture for the purposes therein contained by signing the
name of said bank by herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/S/ Xxxx X. Xxxxxxx
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Notary Public
My Commission expires: 7-3-2001
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(SEAL)
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