Exhibit 4(a)
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SUPPLEMENTAL INDENTURE NO. 23
BETWEEN
XxXXXXXX'X CORPORATION
AND
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
Trustee
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Dated as of September 11, 1995
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SUPPLEMENTAL TO INDENTURE
DATED AS OF MARCH 1, 1987
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XxXXXXXX'X CORPORATION
SUPPLEMENTAL INDENTURE NO. 23
Dated as of September 11, 1995
Series of 6 5/8% Notes due September 1, 2005
$150,000,000
Supplemental Indenture No. 23, dated as of September 11, 1995,
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 FIRST FIDELITY BANK, NATIONAL ASSOCIATION, 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 an
Indenture dated as of March 1, 1987 (the "Indenture").
WHEREAS, Section 10.01 of the Indenture provides for the Company,
when authorized by the Board of Directors, and the Trustee to enter into
an indenture supplemental to the Indenture to establish the form or
terms of any series of Debt Securities as permitted by Sections 2.01 and
2.02 of the Indenture.
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. 23 constitutes an
integral part of the Indenture.
SECTION 1.02. For all purposes of this Supplemental Indenture:
(1) Capitalized terms used herein without definition shall have
the meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of
this Supplemental Indenture No. 23; and
(3) The terms "hereof", "herein", "hereto", "hereunder" and
"herewith" refer to this Supplemental Indenture.
ARTICLE TWO
THE SERIES OF DEBT SECURITIES.
SECTION 2.01. There shall be a series of Debt Securities
designated the "6 5/8% Notes due September 1, 2005" (the "Notes"). The
Notes shall be limited to $150,000,000 aggregate principal amount.
SECTION 2.02. The principal amount of the Notes shall be payable
on September 1, 2005.
SECTION 2.03. The Notes will be represented by a global security
(the "'Global Security"). The Global Security will be deposited with,
or on behalf of, The Depository Trust Company (the "Depositary") and
registered in the name of a nominee of the Depositary. Except under
circumstances described below, the Notes will not be issuable in
definitive form.
Ownership of beneficial interests in the Global Security will be
limited to persons that have accounts with the Depositary or its nominee
("participants") or persons that may hold interests through
participants. Ownership of a beneficial interest in the Global Security
will be shown on, and the transfer of that beneficial interest will only
be effected through, records maintained by the Depositary or its nominee
(with respect to interests of participants) and on the records of
participants (with respect to interests of persons other than
participants).
So long as the Depositary or its nominee is the registered owner of
the Global Security, the Depositary or such nominee, as the case may be,
will be considered the sole owner or Holder of the Notes represented by
the Global Security for all purposes under the Indenture. Except as
provided below, owners of beneficial interests in the Global Security
will not be entitled to have Notes represented by the Global Security
registered in their names, will not receive or be entitled to receive
physical delivery of Notes in definitive form and will not be considered
the owners or Holders thereof under the Indenture.
Principal and interest payments on Notes represented by the Global
Security registered in the name of the Depositary or its nominee will be
made to the Depositary or its nominee, as the case may be, as the
registered owner of the Global Security.
If the Depositary is at any time unwilling or unable to continue as
Depositary and a successor Depositary is not appointed by the Company
within 90 days, the Company will issue Notes in definitive form in
exchange for the entire Global Security. In addition, the Company may
at any time and in its sole discretion determine not to have the Notes
represented by the Global Security and, in such event, will issue Notes
in definitive form in exchange for the entire Global Security. In any
such instance, an owner of a beneficial interest in the Global Security
will be entitled to physical delivery in definitive form of Notes
represented by the Global Security equal in principal amount to such
beneficial interest and to have such Notes registered in its name.
Notes so issued in definitive form will be issued as registered Notes in
denominations of $1,000 and integral multiples thereof, unless otherwise
specified by the Company.
SECTION 2.04. The Notes shall bear interest at the rate of 6 5/8%
per annum, payable semi-annually on March 1 and September 1 of each
year, commencing March 1, 1996. The Notes shall be dated the date of
authentication as provided in the Indenture and interest shall be
payable on the principal represented thereby from the later of September
1, 1995, or the most recent interest payment date to which interest has
been paid or duly provided for.
The interest so payable, and punctually paid or duly provided for,
on any interest payment date shall be paid to the Holder in whose name
any Note is registered in the Debt Security Register at the close of
business on the February 15 or August 15 (whether or not a Business Day)
next preceding such interest payment date (the "Regular Record Date").
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
Registered 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 (1) and
Clause (2) below:
(1) 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 (as defined below) 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 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 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 2.03 provided. Thereupon the
Trustee shall fix a Special Record Date ("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 therefore 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. The Trustee may, in its discretion, in the name and at the
expense of the Company, cause a similar notice to be published at least
once in an Authorized Newspaper in each Place of Payment, but such
publication shall not be a condition precedent to the establishment of
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 whose names the Notes are registered on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) 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.
Subject to the foregoing provisions of this Section, each Note
delivered under this Supplemental Indenture No. 23 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 2.05. The Place of Payment for the Notes shall be both the
City of New York, New York, and the City of Philadelphia, Pennsylvania.
The Trustee shall be the paying agent for the Notes in Philadelphia, and
Bankers Trust Company (or such other agent as may be appointed by the
Company and approved by the Trustee) shall be the paying agent for the
Notes in New York.
SECTION 2.06. The Notes are subject to redemption by the Company,
upon notice given as provided in Section 3.02 of the Indenture, at the
option of the Company, as a whole at any time or in part from time to
time, on any date after September 1, 2002 at a redemption price equal to
100% of the principal amount thereof, together with accrued interest to
the date of redemption.
SECTION 2.07. The Notes may be issued in denominations of $1,000
and any integral multiples thereof.
SECTION 2.08. The Notes shall be issuable as Fully Registered Debt
Securities without coupons.
SECTION 2.09. The Notes shall be in the form attached as Exhibit A
hereto.
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. 23 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. 23 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. 23) by any of the provisions of Sections 310
to 317, inclusive, of the said Act, such required provisions shall
control.
(b) In case any one or more of the provisions contained in this
Supplemental Indenture No. 23 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.
SECTION 3.04. Whenever in this Supplemental Indenture No. 23
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. 23 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.
SECTION 3.05. (a) This Supplemental Indenture No. 23 may be
simultaneously executed in several counterparts, and all said
counterparts executed and delivered, each as an original, shall
constitute but one and the same instrument.
(b) The descriptive headings of the several Articles of this
Supplemental Indenture were formulated, used and inserted in this
Supplemental Indenture No. 23 for convenience only and shall not be
deemed to affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, XxXXXXXX'X CORPORATION has caused this
Supplemental Indenture No. 23 to be signed, acknowledged and delivered
by its President, Vice Chairman and Chief Financial Officer or 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
FIRST FIDELITY BANK, NATIONAL ASSOCIATION, as Trustee, has caused this
Supplemental Indenture No. 23 to be signed, acknowledged and delivered
by one of its Assistant 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: /S/ Xxxxxxxx X. Xxxxx
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Vice President and Treasurer
Attest:
/s/ Xxxxxx Xxxxxxx
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Assistant Secretary
FIRST FIDELITY BANK, NATIONAL ASSOCIATION, as
Trustee
[CORPORATE SEAL]
By: /S/ Xxxx Xxxxxxx
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Assistant Vice President
Attest:
/s/ Xxxxxxx XxXxxxx
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Authorized Officer
STATE OF ILLINOIS
SS:
COUNTY OF DuPAGE
On the 11th day of September, in the year one thousand nine hundred
ninety five, before me appeared Xxxxxxxx X. Xxxxx to me personally
known, who being by me duly sworn, did say that he resides at XxXxxxxx'x
Corporation, that he is 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.
/s/ Xxxxx X. Xxxxx
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Notary Public
STATE OF ILLINOIS
SS:
COUNTY OF XXXX
On the 8th day of September, in the year one thousand nine hundred
ninety five, before me appeared Xxxx X. Xxxxxxx to me personally known,
who, being by me duly sworn, did say that he resides at 0000 Xxxxxx Xxxx
Xxxx, Xxxxxx, XX, that he is an Assistant Vice President of FIRST
FIDELITY 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.
/s/ Xxxxx X. Xxxxx
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Notary Public
