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XXXX XXXXX, INC.
TO
THE BANK OF NEW YORK,
AS TRUSTEE
_______________________
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 9, 1996
_______________________
$100,000,000 6 1/2% SENIOR NOTES DUE 2006
_______________________
SUPPLEMENT TO INDENTURE,
DATED AS OF FEBRUARY 9, 1996, BETWEEN
XXXX XXXXX, INC. AND
THE BANK OF NEW YORK, AS TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE, dated as of February 9, 1996,
between XXXX XXXXX, INC., a Maryland corporation (the "Company"), having its
principal offices at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 and
THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the
"Trustee").
RECITALS
WHEREAS, the Company executed and delivered its Indenture (the
"Original Indenture"), dated as of February 9, 1996, to the Trustee to issue
from time to time for its lawful purposes senior debt securities evidencing its
unsecured and unsubordinated indebtedness.
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Company may create one or more series of its debt
securities and establish the form and terms and conditions thereof.
WHEREAS, the Company intends by this Supplemental Indenture to
(i) create a series of debt securities, in an aggregate principal amount of
$100,000,000, entitled "6 1/2% Senior Notes due 2006" (the "Notes"); and (ii)
establish the form and the terms and conditions of the Notes.
WHEREAS, the Board of Directors of the Company, acting through
authority delegated to its Finance Committee, has approved the creation of the
Notes and the form, terms and conditions thereof.
WHEREAS, the consent of Holders to the execution and delivery
of this Supplemental Indenture is not required, and all other actions required
to be taken under the Original Indenture with respect to this Supplemental
Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
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ARTICLE I
DEFINITIONS, CREATION, FORM AND TERMS AND
CONDITIONS OF THE DEBT SECURITIES
SECTION 1.1 DEFINITIONS. Capitalized terms used in this Supplemental
Indenture and not otherwise defined shall have the meanings ascribed to them in
the Original Indenture. In addition, the following terms shall have the
following meanings to be equally applicable to both the singular and the plural
forms of the terms defined:
"DTC" means The Depository Trust Company.
"GLOBAL NOTE" means a single fully-registered global note in
book-entry form, without coupons, substantially in the form of Exhibit A
attached hereto.
"INDENTURE" means the Original Indenture as supplemented by
this First Supplemental Indenture.
"NOTES" means the Company's 6 1/2% Senior Notes due February
15, 2006, a form of which is attached hereto as Exhibit A.
SECTION 1.2 CREATION OF THE DEBT SECURITIES. In accordance with
Section 3.1 of the Original Indenture, the Company hereby creates the Notes as
a separate series of its debt securities issued pursuant to the Indenture. The
Notes shall be issued in an aggregate principal amount of $100,000,000. This
series of Notes may be reopened for issuances of additional Notes.
SECTION 1.3 FORM OF THE DEBT SECURITIES. The Notes will be
represented by a single fully-registered global note in book-entry form, without
coupons, registered in the name of the nominee of DTC. The Notes shall be in the
form of Exhibit A attached hereto. So long as DTC, or its nominee, is the
registered owner of a Global Note, DTC or its nominee, as the case may be, will
be considered the sole owner or holder of the notes represented by such Global
Note for all purposes under the Indenture. Ownership of beneficial interests in
the Global Note will be shown on, and transfers thereof will be effected only
through, records maintained by DTC (with respect to beneficial interests of
participants) or by participants
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or persons that hold interests through participants (with respect to beneficial
interests of beneficial owners).
SECTION 1.4 TERMS AND CONDITIONS OF THE DEBT SECURITIES. The Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this First Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) Optional Redemption. The Notes may not be redeemed by the
Company prior to the maturity date of such Notes.
(b) Payment of Principal and Interest. Principal and interest
payments on interests represented by the Global Note will be made to DTC or its
nominee, as the case may be, as the registered owner of the Global Note. All
payments of principal and interest in respect of the Notes will be made by the
Company in immediately available funds.
(c) Applicability of Defeasance or Covenant Defeasance. The
provisions of Sections 4.4 and 4.5 of the Original Indenture shall apply to the
Notes.
ARTICLE II
TRUSTEE
SECTION 2.1 TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution thereof by the Company. The
recitals of fact contained herein shall be taken as the statements solely of
the Company, and the Trustee assumes no responsibility for the correctness
thereof.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1 RATIFICATION OF ORIGINAL INDENTURE. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to
the Original Indenture, and as supplemented and modified hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture
and this Supplemental
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Indenture shall be read, taken and construed as one and the same instrument.
SECTION 3.2 EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 3.3 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 3.4 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Supplemental Indenture shall for any reason be
held to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 3.5 GOVERNING LAW. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to conflicts of laws. This Supplemental Indenture is subject to
the provisions of the Trust Indenture Act of 1939, as amended, that are
required to be part of this Supplemental Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 3.6 COUNTERPARTS. This Supplemental Indenture may be
executed in any number of counterparts, and each of such counterparts shall for
all purposes be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above written.
XXXX XXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
Attest:
/s/ F. Xxxxx Xxxxxxx
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Name: F. Xxxxx Xxxxxxx
Title: Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
By:/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Assistant Treasurer
Attest:
/s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
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Exhibit A
REGISTERED REGISTERED NO. R-1
U.S. $100,000,000 CUSIP NO.: 524901 AC 9
THIS SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEES ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED
EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC
TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
XXXX XXXXX, INC.
6 1/2% SENIOR NOTES DUE 2006
Xxxx Xxxxx, Inc., a corporation duly organized and existing
under the laws of Maryland (herein called
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the "Company", which term includes any successor Person under the Senior
Indenture hereinafter referred to), for value received, hereby promises to pay
to Cede & Co., or registered assigns, the principal sum of Xxx Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxx Dollars (U.S. $100,000,000) on February 15, 2006 (the "Maturity
Date"), at the office or agency of the Company referred to below, and to pay
interest thereon semi-annually in arrears on February 15 and August 15 of each
year, commencing August 15, 1996 (each such date an "Interest Payment Date"),
at the rate of 6 1/2% per annum, until the principal hereof is paid or duly
provided for.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Company maintained for that purpose in The Borough of Manhattan, The
City of New York. The Company hereby initially designates the Corporate Trust
Office of the Trustee in the City of New York as the office to be maintained by
it where Notes may be presented for payment, registration of transfer, or
exchange and where notices or demands to or upon the Company in respect of the
Notes or the Senior Indenture referred to in the succeeding pages hereof may be
served.
Interest on this Note will accrue from the most recent payment
date to which interest has been paid or duly provided for, or if no interest
has been paid or duly provided for, from February 14, 1996, until the principal
hereof has been paid or duly made available for payment. Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Senior Indenture, be paid to the
Person in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on the first day of the month in which such Interest
Payment Date occurs (whether or not a Business Day) (each such date a "Record
Date"), which shall be the February 1 or August 1, as the case may be, next
preceding such Interest Payment Date. If any Interest Payment Date or the
Maturity Date falls on a day that is not a Business Day (as defined below), the
required payment of interest or principal or both, as the case may be, will be
made on the next Business Day with the same force and effect as if it were made
on the date
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such payment was due and no interest will accrue on the amount so payable for
the period from and after such Interest Payment Date or the Maturity Date, as
the case may be. "Business Day" means any day, other than a Saturday or a
Sunday, on which banking institutions in The City of New York are open for
business.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United states of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is made to the further provisions of this
certificate set forth on the succeeding pages hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by or on behalf of The Bank of New York, the Trustee under the Senior
Indenture, or its successor thereunder, by the manual signature of one of its
authorized signatories, this Security shall not be entitled to any benefit
under the Senior Indenture, or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated: February 14, 1996
XXXX XXXXX, INC.
as Issuer
By: [Specimen]
----------
Name:
Title:
[Seal]
Attest: [Specimen]
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Authorized Signatory
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TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
By: [Specimen]
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Authorized Signatory
Dated: February 14, 1996
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This Security is one of the duly authorized debt securities of
the Company (herein called the "Securities" and individually a "Security")
issued or to be issued in one or more series under an indenture dated as of
February 9, 1996 (herein called the "Senior Indenture") between the Company and
The Bank of New York, as trustee (herein called the "Trustee", which term
includes any successor trustee under the Senior Indenture), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is a registered global
note of a series designated as the 6 1/2% Senior Notes Due 2006, limited in
aggregate principal amount to $100,000,000.
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 Senior Indenture.
The Securities of this series are not subject to any sinking
fund and are not subject to redemption prior to maturity.
The Senior Indenture contains provisions for defeasance at any
time of (a) the entire indebtedness of the Company on this Security and (b)
certain restrictive covenants and the related Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
The Senior Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
all series to be affected under the Senior Indenture at any time by the Company
and the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series affected
thereby (voting as one class). The Senior Indenture also contains provisions
permitting the Holders of not less than specified percentages in
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aggregate principal amount of the Outstanding Securities of all series
affected, on behalf of the Holders of all the Securities of such series, to
waive certain past defaults under the Senior Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Securities 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 or other such Securities.
As set forth in, and subject to, the provisions of the Senior
Indenture, no Holder of any Security of this series will have any right to
institute any proceeding with respect to the Senior Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to this series,
the Holders of not less that 25% in aggregate principal amount of the
Outstanding Securities of each series affected (treated as a single class)
shall have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not have
received from the Holders of a majority in aggregate principal amount of the
Outstanding Securities of each series affected (with all such series voting as
a single class) a direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days; provided however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of or interest on this Security on or
after the respective due dates expressed herein.
No reference herein to the Senior Indenture and no provision
of this Security or of the Senior Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and interest on this Security at the times, place, and rate, and
in the coin or currency, herein prescribed.
The Trustee has been appointed registrar of the Securities,
and the Trustee will maintain at its office in the Borough of Manhattan, The
City of New York, a register for the registration and transfer of Securities.
As provided in the Senior Indenture and subject to cer-
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tain limitations therein set forth, this Security may be transferred at the
aforesaid office of the Trustee upon surrender of this Security for
cancellation and thereupon the Company shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees, in
exchange therefor, a new Security or Securities having identical terms and
provisions and having a like aggregate principal amount in authorized
denomination.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Senior Indenture and subject to certain
limitations therein set forth, the Securities of this series are exchangeable
for a like aggregate principal amount of Securities of this series and of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Subject to the provisions of the Senior Indenture, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the absolute owner hereof
for all purposes, whether or not this Security be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
If at any time, (i) the Depository is unwilling, unable or
ineligible to continue as Depository and a successor Depository is not
appointed by the Company within 90 days, or (ii) the Company determines that
the Securities shall no longer be represented by a global Security or
Securities, then the Company will execute and the Trustee will authenticate and
deliver Securities in definitive registered form, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of this
Security in exchange for this Security. Such Securities in definitive
registered form shall be registered in such names and issued in such authorized
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denominations as the Depository, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such Securities are
so registered.
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to conflict
of laws.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Senior Indenture and
all indentures supplemental thereto relating to this Security.
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