XXXXXXX ENTERPRISES, INC.
AND
CITIBANK, N.A.,
AS TRUSTEE
___________________
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF APRIL 24, 1998
___________________
SUPPLEMENTING AND AMENDING THE INDENTURE
DATED AS OF
DECEMBER 1, 1996
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of April 24, 1998, is
between XXXXXXX ENTERPRISES, INC., a corporation duly organized and
existing under the laws of the State of Louisiana (herein called the
"Company"), having its principal office at 000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxx 00000, and CITIBANK, N.A., a national banking
association, as Trustee (herein called the "Trustee"). Any capitalized
term used in this First Supplemental Indenture and not defined herein shall
have the meaning specified in the Original Indenture (as defined below).
RECITALS OF THE COMPANY
The Company heretofore has made, executed and delivered to the Trustee
an Indenture dated as of December 1, 1996 (the "Original Indenture," and as
supplemented and amended by this First Supplemental Indenture, the
"Indenture") to provide for the issuance from time to time of unsecured
debentures, notes or other evidences of indebtedness of the Company (herein
called the "Securities"), to be issued in one or more series as provided in
the Original Indenture.
The Company has duly authorized and issued a series of $100,000,000 of
its 6.70% Notes due December 1, 2003 as Securities pursuant to the Original
Indenture.
It is deemed desirable to supplement and amend the Original Indenture
to clarify the terms under which a series of remarketable or redeemable
Securities will be issued under the Indenture.
Section 901 of the Original Indenture provides that under certain
conditions the Company and the Trustee, may, without the consent of any
Holders of Securities, from time to time and at any time, enter into an
indenture or indentures supplemental thereto, for the purpose, among other
things, of adding any additional Events of Default for the protection of
the Holders with respect to all or any series of the Securities (and if
such Event of Default is applicable to less than all series of the
Securities specifying the series to which such Event of Default is
applicable), establishing the form or terms of Securities of any series as
permitted by Sections 201 and 301 of the Indenture, curing any ambiguity
therein or supplementing any provision contained therein which may be
defective or inconsistent with any other provision contained therein or
making any other provisions as the Company may deem necessary or desirable,
provided that no such action shall adversely affect the interest of the
Holders of Securities.
All things necessary to authorize the execution and delivery of this
First Supplemental Indenture, to effect the modifications of the Original
Indenture provided for in this First Supplemental Indenture, and to make
the Original Indenture, as supplemented and amended by this First
Supplemental Indenture, a valid agreement of the Company, in accordance
with its terms, have been done.
The entry into the First Supplemental Indenture by the parties hereto
is in all respects authorized by the Original Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
a series thereof, as follows:
ARTICLE ONE
CONSTRUCTION
Section 1.1. CONSTRUCTION. All references herein to
Articles and Sections are references to Articles and Sections of this First
Supplemental Indenture and all references to Articles and Sections of the
Original Indenture specify such Original Indenture.
ARTICLE TWO
MODIFICATION OF THE ORIGINAL INDENTURE
Section 2.1. AMENDMENT OF SECTION 101 OF THE ORIGINAL
INDENTURE. Section 101 of the Original Indenture is hereby amended by
adding the following new definitions, which shall be inserted in the
definitions in appropriate alphabetical order:
"Remarketable Or Redeemable Securities" means remarketable
or redeemable Securities issued by the Company pursuant to the
provisions of Section 301, Section 312 and the other provisions
of this Indenture.
"Remarketing Agreement" means a remarketing agreement
between the Company and the Remarketing Dealer relating to the
Remarketable Or Redeemable Securities, as may be specified in
Board Resolutions or a supplemental indenture establishing a
series of Remarketable Or Redeemable Securities.
"Remarketing Date" means, with respect to a particular
series of Remarketable Or Redeemable Securities, the "Remarketing
Date" as set forth in such Securities.
"Remarketing Dealer" means NationsBanc Xxxxxxxxxx Securities
LLC and its successors and assigns.
Section 2.2. AMENDMENT OF ARTICLE THREE OF THE ORIGINAL
INDENTURE. Article Three of the Original Indenture is hereby amended by
adding a new Section 312, which shall read in its entirety as follows:
SECTION 312. REMARKETABLE OR REDEEMABLE SECURITIES. Without
limiting the provisions of Section 301, the Company may by action
taken pursuant to a Board Resolution or a supplemental indenture
establish one or more series of Remarketable Or Redeemable
Securities for authentication and delivery pursuant to the terms
of this Indenture.
Section 2.3. AMENDMENT OF SECTION 501 OF THE ORIGINAL
INDENTURE. Section 501 of the Original Indenture is amended by deleting
the period following Section 501(8), inserting a semicolon in lieu thereof,
adding the word "or" after such semicolon and inserting a new
Section 501(9) which shall read in its entirety as follows:
(9) Failure to pay principal of or accrued interest to the
Holders of any series of Remarketable Or Redeemable Securities on
the Remarketing Date.
Section 2.4. AMENDMENT OF SECTION 1104 OF THE ORIGINAL
INDENTURE. Section 1104 of the Original Indenture is amended by adding to
the end of such Section the following sentence:
Notwithstanding the foregoing, no notice shall be required of the
Company's optional or mandatory redemption of Remarketable Or
Redeemable Securities on the Remarketing Date specified for such
series.
Section 2.5. AMENDMENT OF SECTION 1105 OF THE ORIGINAL
INDENTURE. Section 1105 of the Original Indenture is amended by adding to
the end of such Section the following sentence:
Notwithstanding the foregoing, in connection with the optional or
mandatory redemption of Remarketable Or Redeemable Securities,
the Redemption Price must be deposited by the Company with the
Trustee in time for the Trustee to pay the Holders of the
Remarketable Or Redeemable Securities on the Remarketing Date in
accordance with customary procedures of the Trustee.
ARTICLE THREE
THE ROARS
Section 3.1. TITLE, TERMS AND FORM. There is hereby established
a series of Securities to be issued under the Indenture that have the terms
set forth in this ARTICLE THREE of this First Supplemental Indenture.
The title of the Securities of the series is "6.40% Remarketable Or
Redeemable Securities (ROARS{SM}) Due May 1, 2013 (Remarketing Date May 1,
2003)" (the "ROARS"). In connection with the issuance of the ROARS, the
Company will enter into a Remarketing Agreement, dated as of the date of
the issuance of the ROARS, with the Remarketing Dealer. The Remarketing
Date for the ROARS will be May 1, 2003. The stated maturity for the ROARS
will be May 1, 2013 (the "Stated Maturity Date").
The aggregate principal amount of the ROARS that may be authenticated
and delivered under this Indenture (except for ROARS authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other ROARS pursuant to Section 304, 305, 306, 906 or 1107 of the
Original Indenture) is limited to $200,000,000 (Two Hundred Million
Dollars).
The ROARS will bear interest at 6.40% per annum for the period from
the date of their original issuance to the Remarketing Date. If the ROARS
are purchased by the Remarketing Dealer on the Remarketing Date, on and
after the Remarketing Date the ROARS will bear interest at the rate
determined by the Remarketing Dealer in accordance with Section 3.4 (the
"Interest Rate to Maturity").
The ROARS will bear interest from the date of their original issuance,
payable semi-annually on November 1 and May 1 of each year (each, an
"Interest Payment Date"), commencing November 1, 1998, to the Persons in
whose names the ROARS are registered at the close of business on the
preceding October 15 and April 15, respectively (whether or not a Business
Day) (each, a "Regular Record Date"); provided, however, that interest
payable on the Remarketing Date and on the Stated Maturity Date will be
payable to the Person to whom principal shall be payable. Interest
payments will be in the amount of interest accrued from and including the
next preceding Interest Payment Date (or from and including the date of the
original issuance of the ROARS if no interest has been paid or duly
provided for with respect to the ROARS) to but excluding the relevant
Interest Payment Date, the Remarketing Date or the Stated Maturity Date, as
the case may be. Interest on the ROARS shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
The ROARS will be unsubordinated and unsecured obligations of the
Company and will rank pari passu in right of payment with all other
unsubordinated and unsecured indebtedness of the Company. The ROARS will
be issued in denominations of $100,000 or integral multiples of $1,000 in
excess thereof. No ROARS shall be issuable as Bearer Securities. The
ROARS shall be denominated, and principal of and interest on the ROARS
shall be payable, in U.S. dollars. Prior to or on the Remarketing Date,
the ROARS shall not be subject to the satisfaction, discharge and
defeasance provisions of Section 403 of the Original Indenture, but shall
be subject to such provisions after the Remarketing Date.
The ROARS will be issued in fully registered book-entry form, will be
a "Book-Entry Security" under the Indenture and will be represented by one
or more fully registered global securities (the "Global Securities")
deposited with or on behalf of the Depository Trust Company or its
successor as Depository under the Indenture (the "Depository") and
registered in the name of the Depository or its nominee. Interests in the
Global Securities will be shown on, and transfers thereof will be effected
only through, records maintained by the Depository (with respect to its
participants' interests) and the Depository's participants (with respect to
beneficial owners of the ROARS ("Beneficial Owners")). So long as the
Depository or its nominee is the registered owner of a Global Security,
such registered owner will be considered the sole owner or Holder of the
ROARS represented by such Global Security for all purposes under the
Indenture.
Payments of principal of and interest on ROARS represented by a Global
Security registered in the name of the Depository or its nominee will be
made to the Depository or its nominee, as the case may be, as the
registered owner of the Global Security representing such ROARS. None of
the Company, the Trustee, any Paying Agent or the Security Registrar for
such ROARS will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Global Security for such ROARS or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. The ROARS may be transferred or exchanged only through a
participant in the Depository.
The ROARS are not subject to any sinking fund, and, except as provided
in Sections 3.2, 3.5 and 3.6, the ROARS shall not be redeemable prior to
their Stated Maturity Date.
The ROARS shall be in substantially the form of Security attached
hereto as Exhibit A, with such additions and changes not contrary to the
Indenture as any officer delivering the Security shall, in his discretion,
approve, such approval to be conclusively evidenced by his delivery
thereof.
Section 3.2. MANDATORY TENDER ON REMARKETING DATE; PURCHASE
AND SETTLEMENT. (a) If the Remarketing Dealer gives notice to the
Company and the Trustee on the fifth Business Day prior to the Remarketing
Date (the "Notification Date") at no later than 4:00 p.m. New York City
time of its intention to purchase the ROARS for remarketing, each Security
will be automatically tendered, or deemed tendered, to the Remarketing
Dealer for purchase on the Remarketing Date in accordance with Section
3.2(b) below, except as set forth in Section 3.5 and 3.6 below. The
purchase price for the ROARS to be paid by the Remarketing Dealer will be
equal to 100% of the principal amount thereof, and the Company will pay
accrued interest, if any, to the Remarketing Date. If the ROARS are
tendered for remarketing, the Remarketing Dealer may remarket the ROARS for
its own account at varying prices to be determined by the Remarketing
Dealer at the time of each sale. From and after the Remarketing Date, the
ROARS will bear interest at the Interest Rate to Maturity. If the
Remarketing Dealer elects to remarket the ROARS, the obligation of the
Remarketing Dealer to purchase the ROARS on the Remarketing Date is subject
to the conditions set forth in the Remarketing Agreement. If for any
reason the Remarketing Dealer does not purchase all ROARS on the
Remarketing Date, the Company will be required to redeem the ROARS on the
Remarketing Date at a price equal to 100% of the principal amount thereof
plus all accrued and unpaid interest, if any, on the ROARS to the
Remarketing Date. No Beneficial Owners shall have any rights or claims
under the Remarketing Agreement or against the Company or the Remarketing
Dealer as a result of the Remarketing Dealer not purchasing the ROARS.
Each Holder and Beneficial Owner of a ROARS by its acceptance of ROARS will
agree to deliver its ROARS on the Remarketing Date for either purchase or
redemption as provided herein.
(b) Following the Notification Date, the tender and purchase of the
ROARS provided for in Section 3.2(a) above shall be effected as follows,
subject to Sections 3.5 and 3.6 below:
(i) All of the ROARS shall be delivered automatically to the
account of the Trustee, by book-entry through the Depository
pending payment of the purchase price therefor, on the
Remarketing Date.
(ii) The Remarketing Dealer will deliver the purchase price
for the ROARS to the Trustee by 3:00 p.m. New York City time on
the Business Day immediately preceding the Remarketing Date for
payment to the the Depository participant (each, a "Participant")
of each Beneficial Owner of ROARS, through the Depository in
accordance with the procedures of the Depository, against
delivery or deemed delivery through the Depository of such
Beneficial Owner's ROARS. The Company will make, or cause the
Trustee to make, payment of interest due on the Remarketing Date
to the Depository for distribution to each Beneficial Owner of
ROARS by book-entry through the Depository by the close of
business on the Remarketing Date.
Section 3.3. MAINTENANCE OF BOOK-ENTRY SYSTEM. (a) The
tender and settlement procedures set forth in Section 3.2(b) above shall be
subject to modification to the extent required by the Depository or, if the
book-entry system is no longer available for the ROARS at the time of the
remarketing, to the extent required to facilitate the tendering and
remarketing of ROARS in a form other than global form. In addition, the
Remarketing Dealer may modify (with the consent of the Trustee to the
extent required by the Indenture) the settlement procedures set forth
herein in order to facilitate the settlement process in any manner not
contrary to the Indenture or adverse to the interests of the Holders of the
ROARS; provided that such procedures must, in the reasonable opinion of the
Company, allow the Company sufficient time to fund the redemption of the
ROARS on the Remarketing Date.
(b) The Company hereby agrees with the Trustee and the Holders
of the ROARS that at all times, (i) it will use its best efforts to
maintain the ROARS in book-entry form with the Depository or any successor
thereto and to appoint a successor depository to the extent necessary to
maintain the ROARS in book-entry form and (ii) it will waive any
discretionary right that it otherwise may have under the Indenture to cause
the ROARS to be issued in a form other than global form.
Section 3.4. DETERMINATION OF INTEREST RATE TO MATURITY;
NOTIFICATION THEREOF. If the Remarketing Dealer elects to remarket
the ROARS as provided in Section 3.2(a), by 3:30 p.m. New York City
time, on the third Business Day immediately preceding the Remarketing Date
(the "Determination Date"), the Remarketing Dealer shall determine the
Interest Rate to Maturity to the nearest one thousandth (0.001) of one
percent per annum. The "Interest Rate to Maturity" shall be equal to the
sum of 5.44% per annum (the "Base Rate") and the Applicable Spread (as
defined below), which will be based on the Dollar Price (as defined below)
of the ROARS.
"Applicable Spread" shall be the lowest bid indication, expressed
as a spread (in the form of a percentage or in basis points) above the
Base Rate, obtained by the Remarketing Dealer on the Determination
Date from the bids quoted by five Reference Corporate Dealers (as
defined below) for the full aggregate principal amount of the ROARS at
the Dollar Price, but assuming (i) an issue date that is the
Remarketing Date, with settlement on such date without accrued
interest, (ii) a maturity date that is the Stated Maturity Date and
(iii) a stated annual interest rate equal to the Base Rate plus the
spread bid by the applicable Reference Corporate Dealer. If fewer
than five Reference Corporate Dealers bid as described above, then the
Applicable Spread shall be the lowest of such bid indications obtained
as described above. The Interest Rate to Maturity announced by the
Remarketing Dealer, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners and Holders of the ROARS, the
Company and the Trustee.
"Comparable Treasury Issues" means the United States Treasury
security or securities selected by the Remarketing Dealer as having an
actual or interpolated maturity or maturities comparable to the
remaining term of the ROARS being purchased by the Remarketing Dealer.
"Comparable Treasury Price" means, with respect to the
Remarketing Date, (a) the offer prices for the Comparable Treasury
Issues (expressed in each case as a percentage of its principal
amount) on the Determination Date, as set forth on "Telerate Page 500"
(or such other page as may replace Telerate Page 500), or (b) if such
page (or any successor page) is not displayed or does not contain such
offer prices on the Determination Date, (i) the average of the
Reference Treasury Dealer Quotations (defined below) for the
Remarketing Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Remarketing
Dealer obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer
Quotations. "Telerate Page 500" means the display designated as
"Telerate Page 500" on Dow Xxxxx Markets (or such other page as may
replace Telerate Page 500 on such service) or such other service
displaying the offer prices specified in (a) above as may replace Dow
Xxxxx Markets.
"Dollar Price" means, with respect to the ROARS, the present
value, as of the Remarketing Date, of the Remaining Scheduled Payments
(as defined below) discounted to the Remarketing Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate (as defined below).
"Reference Corporate Dealer" means each of NationsBanc Xxxxxxxxxx
Securities LLC, Bear Xxxxxxx & Co., Citicorp Securities, Inc., and two
other dealers to be selected by the Company and their respective
successors; provided that if any of the foregoing or their affiliates
shall cease to be a leading dealer of publicly traded debt securities
of the Company (a "Primary Corporate Dealer"), the Remarketing Dealer
shall substitute therefor another Primary Corporate Dealer.
"Reference Treasury Dealer" means each of NationsBanc Xxxxxxxxxx
Securities LLC, Bear Xxxxxxx & Co., Citicorp Securities, Inc., and two
other dealers to be selected by the Company and their respective
successors; provided that if any of the foregoing or their affiliates
shall cease to be a primary U.S. Government securities dealer (a
"Primary Treasury Dealer"), the Remarketing Dealer shall substitute
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and the Remarketing Date, the offer
prices for the Comparable Treasury Issues (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Remarketing Dealer by such Reference Treasury Dealer by 3:30 p.m. on
the Determination Date.
"Remaining Scheduled Payments" means, with respect to the ROARS,
the remaining scheduled payments of the principal thereof and interest
thereon, calculated at the Base Rate only, that would be due after the
Remarketing Date to and including the Stated Maturity Date; provided
that if the Remarketing Date is not an Interest Payment Date with
respect to the ROARS, the amount of the next succeeding scheduled
interest payment thereon, calculated at the Base Rate only, will be
reduced by the amount of interest accrued thereon, calculated at the
Base Rate only, to the Remarketing Date.
"Treasury Rate" means, with respect to the Remarketing Date, the
rate per annum equal to the semi-annual equivalent yield to maturity
or interpolated (on a day count basis) yield to maturity of the
Comparable Treasury Issues, assuming a price for the Comparable
Treasury Issues (expressed as a percentage of its principal amount),
equal to the Comparable Treasury Price for the Remarketing Date.
If the Remarketing Dealer elects to remarket the ROARS, the
Remarketing Dealer will notify the Company, the Trustee and the Depository
by telephone, confirmed in writing (which may include facsimile or other
electronic transmission), by 4:00 p.m. New York City time on the
Determination Date of the Interest Rate to Maturity applicable to the ROARS
effective from and including the Remarketing Date.
Upon the occurrence of certain termination events set forth in the
Remarketing Agreement, the Remarketing Dealer, in its sole discretion, in
lieu of terminating the Remarketing Agreement, at any time between the
Determination Date and 10:30 a.m. New York City time, on the Business Day
immediately preceding the Remarketing Date, may elect to purchase the ROARS
for remarketing and determine a new Interest Rate to Maturity in the manner
set forth above in this Section 3.4, except that for purposes of
determining the new Interest Rate to Maturity pursuant to this provision,
the Determination Date referred to above shall be the date of such election
and redetermination. The Remarketing Dealer shall notify the Company, the
Trustee and the Depository by telephone, confirmed in writing (which may
include facsimile or other electronic transmission), by 11:00 a.m. New York
City time, on the date of such election, of the new Interest Rate to
Maturity applicable to the ROARS. Thereupon, such new Interest Rate to
Maturity shall supersede and replace any Interest Rate to Maturity
previously determined by the Remarketing Dealer and, absent manifest error,
shall be binding and conclusive upon the Beneficial Owners and Holders of
the ROARS on and after the Remarketing Date, the Company and the Trustee.
Notwithstanding the foregoing, the Remarketing Dealer, by redetermining the
Interest Rate to Maturity upon the occurrence of any such termination
event, shall not thereby be deemed to have waived its right to determine a
new Interest Rate to Maturity or to terminate the Remarketing Agreement
upon the subsequent occurrence of another such termination event. If the
Remarketing Dealer elects to purchase the ROARS and redetermine the
Interest Rate to Maturity in accordance with the foregoing provisions in
this paragraph, the Company will retain the right to redeem the ROARS as
specified in Section 3.6, provided that such election shall be made no
later than 12:30 p.m. New York City time on the Business Day immediately
preceding the Remarketing Date.
Section 3.5. MANDATORY REDEMPTION. Subject to the
Remarketing Dealer's right to elect to purchase the ROARS and redetermine
the Interest Rate to Maturity described in the immediately preceding
paragraph, the Company shall redeem the ROARS as a whole on the Remarketing
Date at a price equal to 100% of the principal amount thereof plus all
accrued and unpaid interest, if any, on the ROARS to the Remarketing Date
in the event that (a) the Remarketing Dealer for any reason does not notify
the Company of the Interest Rate to Maturity by 4:00 p.m. New York City
time on the Determination Date, (b) prior to the Remarketing Date, the
Remarketing Dealer has resigned and no successor has been appointed on or
before the Determination Date, (c) at any time after the Remarketing Dealer
elects on the Notification Date to remarket the ROARS, the Remarketing
Dealer shall have elected to terminate the Remarketing Agreement in
accordance with the terms thereof, (d) the Remarketing Dealer does not give
notice to the Company and the Trustee by 4:00 p.m. New York City time on
the Notification Date of its intention to purchase the ROARS on the
Remarketing Date, (e) the Remarketing Dealer for any reason fails to
deliver the purchase price of the ROARS to the Trustee by 3:00 p.m. New
York City time on the Business Day immediately preceding the Remarketing
Date, or (f) the Company fails for any reason to redeem the ROARS following
its election to effect such redemption as specified in Section 3.6. In any
such case, payment shall be made by the Company through the Trustee to the
Participant of each Beneficial Owner of ROARS, by book-entry through the
Depository, by the close of business on the Remarketing Date against
delivery or deemed delivery through the Depository of such Beneficial
Owner's ROARS. No defense or right against the Remarketing Dealer shall
relieve the Company of its obligations to the Holders of the ROARS to make
such mandatory redemption.
Section 3.6. OPTIONAL REDEMPTION. (a) Notwithstanding any
election by the Remarking Dealer to remarket the ROARS, the tendering of
the ROARS for purchase by the Remarketing Dealer shall be subject to the
right of the Company to redeem the ROARS as provided in Section 3.6(b)
below.
(b) The Company, in its sole and absolute discretion, shall have
the right, upon notice to the Remarketing Dealer and the Trustee not later
than 4:00 p.m. New York City time on the Business Day immediately preceding
the Determination Date, to irrevocably elect to redeem the ROARS, in whole
but not in part, on the Remarketing Date. If the Remarketing Dealer elects
to purchase the ROARS and redetermine the Interest Rate to Maturity under
the circumstances described in the last paragraph of Section 3.4 above, the
Company will retain the right to redeem the ROARS, provided that such
election must be made by 12:30 p.m. New York City time on the Business Day
immediately preceding the Remarketing Date. If the Company gives such
notice to the Remarketing Dealer and the Trustee, then (i) the Remarketing
Dealer will be deemed to have elected not to remarket the ROARS, (ii) the
Company shall redeem the ROARS from Holders as a whole on the Remarketing
Date at a price equal to 100% of the aggregate principal amount of the
ROARS plus all accrued and unpaid interest, if any, on the ROARS to the
Remarketing Date (such payment to be made by the Company through the
Trustee to the Depository for distribution to the Depository Participant of
each Beneficial Owner of ROARS, by the close of business on the Remarketing
Date against delivery through the Depository of such Beneficial Owner's
ROARS) and (iii) the Company will pay to the Remarketing Dealer the
Calculation Amount, as defined in the Remarketing Agreement.
Section 3.7. PURCHASE OF THE ROARS BY THE COMPANY. As
long as the Remarketing Agreement is in effect, neither the Company, nor
any Person whose acquisition of ROARS would cause such ROARS not to be
outstanding, will defease, purchase or otherwise acquire any of the ROARS
prior to the Remarketing Date, other than in connection with the
fulfillment of its obligation to redeem the ROARS on the Remarketing Date
under the circumstances described herein. After the Remarketing Date, the
Company may at any time purchase the ROARS at any price in the open market
or otherwise. The ROARS so purchased by the Company may, at its
discretion, be held, resold or surrendered to the Trustee for cancellation.
Section 3.8. PAYMENT AND PAYMENT AGENTS. Principal of
and interest on the ROARS shall be payable at the office or agency of the
Company to be maintained in the Borough of Manhattan, The City of New York,
initially at the Corporate Trust Office of the Trustee, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security
Register. Notwithstanding the foregoing, payments of principal and interest
on the ROARS represented by one or more Book-Entry Securities will be made
as provided above.
ARTICLE FOUR
ADDITIONAL REPRESENTATIONS
AND COVENANTS OF THE COMPANY
Section 4.1. AUTHORITY OF THE COMPANY. The Company
represents and warrants that it is duly authorized by a resolution of the
Board of Directors to execute and deliver this First Supplemental
Indenture, and all corporate action on its part required for the execution
and delivery of this First Supplemental Indenture has been duly and
effectively taken.
Section 4.2. RECITALS AND STATEMENTS. The Company
warrants that the recitals of fact and statements contained in this First
Supplemental Indenture are true and correct, and that the recitals of fact
and statements contained in all certificates and other documents furnished
hereunder will be true and correct.
ARTICLE FIVE
CONCERNING THE TRUSTEE
Section 5.1. ACCEPTANCE OF TRUSTS. The Trustee accepts
the trust hereunder and agrees to perform the same, but only upon the terms
and conditions set forth in the Original Indenture and in this First
Supplemental Indenture, to which the Company and the respective Holders of
Securities at any time hereafter outstanding agree by their acceptance
thereof.
Section 5.2. RESPONSIBILITY OF TRUSTEE FOR RECITALS,
ETC. The recitals and statements contained in this First Supplemental
Indenture shall be taken as the recitals and statements of the Company, and
the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
First Supplemental Indenture.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.1. RELATION TO THE INDENTURE. The provisions
of this First Supplemental Indenture shall become effective immediately
upon the execution and delivery hereof. This First Supplemental Indenture
and all the terms and provisions contained herein shall form a part of the
Indenture as fully and with the same effect as if all such terms and
provisions had been set forth in the Original Indenture. The Original
Indenture is hereby ratified and confirmed and shall remain and continue in
full force and effect in accordance with the terms and provision thereof,
as supplemented and amended by this First Supplemental Indenture and the
Original Indenture and this First Supplemental Indenture shall be read,
taken and construed together as one instrument.
Section 6.2. COUNTERPARTS OF FIRST SUPPLEMENTAL
INDENTURE. This First Supplemental Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and
the same instrument.
Section 6.3. GOVERNING LAW. This First Supplemental
Indenture shall be governed by and construed in accordance with the laws of
the State of New York, without regard to principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
COMPANY
XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxx X. Patron
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TRUSTEE
CITIBANK, N.A., as Trustee
By: Xxxxxx X. Xxxxxxxx
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EXHIBIT A IS FILED AS EXHIBIT 4.2 TO THE COMPANY'S FORM 8-K
TO WHICH THIS FIRST SUPPLEMENTAL INDENTURE IS AN EXHIBIT
