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EXHIBIT 4(a)
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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 March 15, 1987
$132,000,000
5 1/2% Debentures Due 2012
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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 March 15, 1987 (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. Section 2.05 of the Original Indenture reads in its
entirety as follows:
SECTION 2.05. Exchange and Registration of Transfer of
Debentures. Debentures may be exchanged for a like aggregate
principal amount of Debentures of other authorized denominations.
Debentures to be exchanged shall be surrendered at the office or
agency to be maintained by the Trustee in the City of Charlotte, North
Carolina, and the Company shall execute and register and the Trustee
shall authenticate and deliver in exchange therefor the Debenture or
Debentures which the Debentureholder making the exchange shall be
entitled to receive.
The Company shall cause to be kept at said office of
the Trustee in the City of Charlotte, North Carolina, register [sic]
in which, subject to such reasonable regulations as it may prescribe,
Debentures shall be registered and the transfer of Debentures shall be
registered as in this Article Two provided. Such register shall be in
written form or in any other form capable of being converted into
written form within a reasonable time. At all reasonable times such
register shall be open for inspection by the Trustee. Upon due
presentment for registration of transfer of any Debenture at such
office or agency maintained by the Trustee in the
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City of Charlotte, North Carolina, the Company shall execute and
register and the Trustee shall authenticate and deliver in the name of
the transferee or transferees a new Debenture or Debentures for an
equal aggregate principal amount.
All Debentures presented for registration of transfer
or for exchange, redemption, conversion or payment shall (if so
required by the Company or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or
registration of transfer of Debentures, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
The Company shall not be required to exchange or
register a transfer of (a) any Debentures for a period of 15 days next
preceding any selection of Debentures to be redeemed, (b) any
Debentures or portions thereof selected or called for redemption or
(c) any Debentures surrendered for conversion.
B. Section 5.02 of the Original Indenture reads in its
entirety as follows:
SECTION 5.02. Offices for Notices and Payments, etc.
So long as any of the Debentures remain outstanding, the Company will
maintain in the City of Charlotte, North Carolina, an office or agency
where the Debentures may be presented for payment, and an office or
agency where the Debentures may be presented for registration of
transfer and for exchange and conversion as in this Indenture provided
and an office or agency where notices and demands to or upon the
Company in respect of the Debentures or of this Indenture may be
served. The Company will give to the Trustee written notice of the
location of each such office or agency and of any change
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of location thereof. If the Company shall fail to maintain any such
office or agency or shall fail to give such notice of the location or
of any change in the location thereof, presentations and demands may
be made and notices may be served at the principal offices of the
Trustee in the City of Charlotte, North Carolina, and the Company
hereby appoints the Trustee at the principal office of the Trustee in
the City of Charlotte, North Carolina, its agent to receive all such
presentations, demands and notices.
C. Section 8.09 of the Original Indenture reads in its
entirety as follows:
SECTION 8.09. Eligibility of Trustee. The Trustee
hereunder shall at all times be a corporation organized and doing
business under the laws of the United States or any State or Territory
thereof or of the District of Columbia authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least five million dollars, subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority and having its principal office and place of business in the
City of Charlotte, North Carolina. 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 8.09, 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 8.09, the Trustee
shall resign immediately in the manner and with the effect specified
in Section 8.10.
D. Section 16.03 of the Original Indenture reads in its
entirety as follows:
SECTION 16.03. Addresses for Notices, etc. Any
notice or demand which by any provision of this Indenture is required
or permitted to be given or served
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by the Trustee or by the holders of Debentures on the Company may be
given or served by being deposited postage prepaid by registered or
certified mail in a post office letter box addressed (until another
address is filed by the Company with the Trustee) to Hechinger
Company, 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 Attention:
Secretary. Any notice, direction, request or demand by any
Debentureholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in
writing at the principal corporate trust office of the Trustee, 0000
Xxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
E. Section 16.06 of the Original Indenture reads in its
entirety as follows:
SECTION 16.06. Legal Holidays. In any case where
the date of maturity of interest on or principal of the Debentures or
the date fixed for redemption of any Debenture will be in the City of
Charlotte, North Carolina, a legal holiday or a day on which banking
institutions are authorized by law or executive order to close ("Legal
Holidays"), then payment of such interest on or principal of the
Debentures need not be made on such date but may be made on the next
succeeding day not a Legal Holiday with the same force and effect as
if made on the date of maturity or the date fixed for redemption and
no interest shall accrue for the period from and after such date.
F. Section 11.01 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 such other provisions in regard to matters or questions arising under
the Original Indenture which shall not adversely affect the interests of the
holders of the Debentures. Section 11.05 of the Original Indenture provides
that the Trustee may rely upon an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any such supplemental indenture complies
with the foregoing conditions and provisions of the Original Indenture.
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G. The Company desires to enter into this First
Supplemental Indenture to expand the number of corporations potentially
eligible to be Trustee by amending Sections 2.05, 5.02, 8.09, 16.03 and 16.06
of the Original Indenture as hereinafter provided.
H. By its execution and delivery of this First
Supplemental Indenture, the Trustee acknowledges its receipt of and reliance
upon the Officers' Certificate and Opinion of Counsel attached hereto, which
Officers' Certificate and Opinion of Counsel are acceptable to the Trustee, to
the effect that this First Supplemental Indenture complies with the conditions
and provisions of Section 11.01 of the Original Indenture.
NOW, THEREFORE, in consideration of the premises, the Company
and the Trustee agree as follows:
1. Amendment of Section 2.05 of Original Indenture. Section 2.05
of the Original Indenture is hereby amended to read in its entirety as follows:
SECTION 2.05. Exchange and Registration of Transfer
of Debentures. Debentures may be exchanged for a like aggregate
principal amount of Debentures of other authorized denominations.
Debentures to be exchanged shall be surrendered at the office or
agency to be maintained by the Trustee at the Principal Office of the
Trustee, and the Company shall execute and register and the Trustee
shall authenticate and deliver in exchange therefor the Debenture or
Debentures which the Debentureholder making the exchange shall be
entitled to receive.
The Company shall cause to be kept at the Principal
Office of the Trustee, a register in which, subject to such reasonable
regulations as it may prescribe, Debentures shall be registered and
the transfer of Debentures shall be registered as in this Article Two
provided. Such register shall be in written form or in any other form
capable of being converted into written form within a reasonable time.
At all reasonable times such register shall be open for inspection by
the Trustee. Upon due presentment for registration of transfer of any
Debenture at the Principal Office of the
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Trustee, the Company shall execute and register and the Trustee shall
authenticate and deliver in the name of the transferee or transferees
a new Debenture or Debentures for an equal aggregate principal amount.
All Debentures presented for registration of transfer
or for exchange, redemption, conversion or payment shall (if so
required by the Company or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or
registration of transfer of Debentures, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
The Company shall not be required to exchange or
register a transfer of (a) any Debentures for a period of 15 days next
preceding any selection of Debentures to be redeemed, (b) any
Debentures or portions thereof selected or called for redemption or
(c) any Debentures surrendered for conversion.
2. Amendment of Section 5.02 of Original Indenture. Section 5.02
of the Original Indenture is hereby amended to read in its entirety as follows:
SECTION 5.02. Offices for Notices and Payments, etc.
So long as any of the Debentures remain outstanding, the Company will
maintain an office or agency where the Debentures may be presented for
payment, and an office or agency where the Debentures may be presented
for registration of transfer and for exchange and conversion as in
this Indenture provided and an office or agency where notices and
demands to or upon the Company in respect of the Debentures or of this
Indenture may be served. The Company will give to the Trustee written
notice of the location of each such office or agency and of any change
of location thereof. If the
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Company shall fail to maintain any such office or agency or shall fail
to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be
served at the Principal Office of the Trustee, and the Company hereby
appoints the Trustee at the Principal Office of the Trustee, its agent
to receive all such presentations, demands and notices.
3. Amendment of Section 8.09 of Original Indenture. Section 8.09
of the Original Indenture is hereby amended to read in its entirety as follows:
SECTION 8.09. Eligibility of Trustee. The Trustee
hereunder shall at all times be a corporation organized and doing
business under the laws of the United States or any State or Territory
thereof or of the District of Columbia authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least five million dollars, and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. 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 8.09, 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 8.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section
8.10.
4. Amendment of Section 16.03 of Original Indenture. Section
16.03 of the Original Indenture is hereby amended to read in its entirety as
follows:
SECTION 16.03. Addresses for Notices, etc. Any
notice or demand which by any provision of this Indenture is required
or permitted to be given or served by the Trustee or by the holders of
Debentures on the Company may be given or served by being deposited
postage
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prepaid by registered or certified mail in a post office letter box
addressed (until another address is filed by the Company with the
Trustee) to Hechinger Company, 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx
00000 Attention: Secretary. Any notice, direction, request or demand
by any Debentureholder or the Company to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if
given or made in writing and deposited postage prepaid by registered
or certified mail in a post office letter box addressed (until another
address is filed by the Trustee with the Company) to First Union
National Bank of North Carolina, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000 Attention: Corporate Trust Department.
5. Amendment of Section 16.06 of Original Indenture. Section
16.06 of the Original Indenture is hereby amended to read in its entirety as
follows:
SECTION 16.06. Legal Holidays. In any case where
the date of maturity of interest on or principal of the Debentures or
the date fixed for redemption of any Debenture will be in the city of
the Principal Office of the Trustee a legal holiday or a day on which
banking institutions are authorized by law or executive order to close
("Legal Holidays"), then payment of such interest on or principal of
the Debentures need not be made on such date but may be made on the
next succeeding day not a Legal Holiday with the same force and effect
as if made on the date of maturity or the date fixed for redemption
and no interest shall accrue for the period from and after such date.
6. 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.
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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
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Treasurer and Secretary and 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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