Exhibit 4.1
XXXXXX BROTHERS HOLDINGS INC.
AND
THE CHASE MANHATTAN BANK,
as Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of January 26, 1999
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THIS SECOND SUPPLEMENTAL INDENTURE, dated as of January 26,
1999, is between XXXXXX BROTHERS HOLDINGS INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), and THE CHASE
MANHATTAN BANK, a banking corporation duly organized and existing under the laws
of the State of New York, acting as Trustee under the Indenture referred to
below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has duly authorized the execution and
delivery of an Indenture dated as of February 1, 1996 (the "Indenture"), as
amended and supplemented, to provide for the issuance from time to time of its
unsecured notes or other evidences of indebtedness to be issued in one or more
series (the "Securities"), as in the Indenture provided, up to such principal
amount or amounts as may from time to time be authorized in or pursuant to one
or more resolutions of the Board of Directors;
WHEREAS, the Company will sell on the date hereof to Xxxxxx
Brothers Holdings Capital Trust I, a Delaware statutory business trust ("Trust
I"), a series of Securities entitled the "8.00% Subordinated Deferrable Interest
Debentures due 2048" (the "Subordinated Debentures");
WHEREAS, the Company has duly authorized the execution and
delivery of this Second Supplemental Indenture in order to provide for certain
supplements to the Indenture which shall only be applicable to the Subordinated
Debentures;
WHEREAS, all acts and things necessary to make this Second
Supplemental Indenture a valid agreement of the Company according to its terms
have been done and performed, and the execution and delivery of this Second
Supplemental Indenture have in all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises, of the
purchase and acceptance of the Securities by the Holders thereof, and of the sum
of one dollar duly paid to it by the Trustee at the execution and delivery of
these presents, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee to supplement the Indenture, only for
purposes of the Subordinated Debentures, as follows:
SECTION 1. AMENDMENTS TO THE INDENTURE
1.1 Amendment to Section 101 of the Indenture. Section 101 of the Indenture
is hereby amended solely with respect to the Subordinated Indentures by adding
the following new definitions thereto, in the appropriate alphabetical sequence:
"Debentures" means the Company's 8.00% Subordinated Deferrable
Interest Debentures due 2048.
"Declaration" means the Amended and Restated Declaration of Trust,
dated as of January 26, 1999 among the Company and the trustees named
therein.
"Trust I" means Xxxxxx Brothers Capital Trust I, a Delaware statutory
business trust.
1.2 Amendment to Section 501 of the Indenture. Section 501 is amended by
deleting the "or" at the end of paragraph (6) and inserting "; or" at the end of
paragraph (7) in place of the period and adding the following at the end
thereof:
"(8) Trust I shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its existence except in
connection with (i) distribution of the Securities held by Trust I to
holders of its securities in liquidation of such holders' interests in
Trust I, (ii) redemption of all of the securities issued by Trust I,
or (iii) mergers, consolidations or amalgamations, each as permitted
by Section 3.15 of the Declaration."
1.3 Amendment to Section 902 of the Indenture. Section 902 is amended to
add the following at the end thereof:
"For purposes of this Section 902, if the Debentures are held by Trust
I, the consent of not less than 66 2/3% of the aggregate liquidation
amount of the securities issued by Trust I shall be required in order
for such supplemental indenture to be effective."
1.4 Amendment to Section 1007 of the Indenture. Section 1007 is amended to
add the following at the end thereof:
"For purposes of this Section 1007, if the Debentures are held by
Trust I, the consent of not less than a majority of the aggregate
liquidation amount of the securities issued by Trust I shall be
required in order to waive a covenant."
1.5 Amendment to Section 513 of the Indenture. Section 513 is amended to
add the following at the end thereof:
"For purposes of this Section 513, if the Debentures are held by Trust
I, the consent of not less than a majority of the aggregate
liquidation amount of the securities issued by Trust I shall be
required in order to waive such default."
1.6 Amendment to Article Ten of the Indenture. Article Ten of
the Indenture is amended to add the following covenant at the end of such
Article:
"SECTION 1010. Trust Covenants.
The Company shall, for so long as Trust I is in existence: (i) maintain
directly or indirectly 100% ownership of the common securities of Trust I, (ii)
cause Trust I to remain a statutory business trust and not to be voluntarily
dissolved, wound-up, liquidated or terminated, except as provided for in the
Declaration, (iii) use its commercially reasonable efforts to assure that Trust
I will not be an "investment company" for purposes of the Investment Company Act
of 1940, (iv) take no action that would be reasonably likely to cause Trust I to
be classified as an association in a publicly traded partnership taxable as a
corporation for United States federal income tax purposes, and (v) agree to pay
all debts and obligations (other than with respect to the securities issued by
Trust I) and all costs and expenses of Trust I (including, but not limited to,
all costs and expenses relating to the organization of Trust I, the fees and
expenses of the trustees and all costs and expenses relating to the operation of
Trust I ) and to pay any and all taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes) imposed on Trust I by
the United States, or any other taxing authority, so that the net amounts
received and retained by Trust I after paying such expenses will be equal to the
amounts Trust I would have received had no such costs or expenses been incurred
by or imposed on the Trust I. The foregoing obligations of the Company are for
the benefit of, and shall be enforceable by, any Person to whom any such debts,
obligations, costs, expenses and taxes are owed (each, a "Creditor") whether or
not such Creditor has received notice thereof. Any such Creditor may enforce
such obligations of the Company directly against the Company, and the Company
irrevocable waives any right or remedy to require that any such Creditor take
any action against Trust I or any other Person before proceeding against the
Company.
SECTION 2. MISCELLANEOUS
2.1 Debentures. Attached hereto as Exhibit A is a form of the Subordinated
Debenture.
2.2 Separability. In case any provision in this Second Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
2.3 Continuance of Indenture. This Second Supplemental Indenture
supplements the Indenture and shall be a part of and subject to all the terms
thereof. The Indenture, as supplemented by this Second Supplemental
Indenture, shall continue in full force and effect.
2.4 The Trustee. The Trustee shall not be responsible in any manner for or
in respect of the validity or sufficiency of this Second Supplemental Indenture,
or for or in respect of the recitals contained herein, all of which recitals are
made by the Company solely.
2.5 Governing Law. This Second Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York.
2.6 Defined Terms. All capitalized terms used in this Second Supplemental
Indenture which are defined in the Indenture, but not otherwise defined herein,
shall have the same meanings assigned to them in the Indenture.
2.7 Counterparts. This Second 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.
The Chase Manhattan Bank hereby accepts the trusts in this
Second Supplemental Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, Xxxxxx Brothers Holdings Inc. has caused this Second
Supplemental Indenture to be signed, and acknowledged by its President, its
Chairman of the Board, one of its Vice Presidents, its Chief Executive Officer
or its Treasurer, and its corporate seal to be affixed hereunto, and the same to
be attested by its Secretary, its Assistant Secretary or one of its Attesting
Secretaries, and The Chase Manhattan Bank, as Trustee, has caused this Second
Supplemental Indenture to be signed and acknowledged by one its authorized
officers, and its corporate seal to be affixed hereunto, and the same to be
attested by one of its authorized officers, as of the day and
year first above written.
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxx Xxxxxx
Attest:
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THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Xxxxxxxx Xxxxxxxx
Attest:
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