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Exhibit 4.3b
XXXXX XXXXXX GROUP INC.
and
THE CHASE MANHATTAN BANK
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of December 9, 1996
to the
INDENTURE
Dated as of December 9, 1996
----------------------
8.30% Junior Subordinated Debentures
Due 2036
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FIRST SUPPLEMENTAL INDENTURE, dated as of
December 9, 1996 (this "First Supplemental
Indenture"), between XXXXX XXXXXX GROUP INC., a
corporation duly organized and existing under the
laws of the State of Delaware (hereinafter sometimes
referred to as the "Company") and THE CHASE MANHATTAN
BANK, a New York banking corporation, as trustee
(hereinafter sometimes referred to as the "Trustee")
under the Indenture dated as of December 9, 1996,
between the Company and the Trustee (the
"Indenture"); as set forth in Section 7.01 hereto and
except as otherwise set forth herein, all terms used
and not defined herein are used as defined in the
Indenture).
WHEREAS the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its junior subordinated
debentures (the "Debentures"), said Debentures to be issued from time to time in
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
thereunder as in the Indenture provided;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures to be
known as its 8.30% Junior Subordinated Debentures due 2036 (said series being
hereinafter referred to as the "Series 8.30% Debentures"), the form of such
Series 8.30% Debentures and the terms, provisions and conditions thereof to be
as provided in the Indenture and this First Supplemental Indenture;
WHEREAS the Company has caused to be formed PWG Capital Trust
I (the "Trust") as a business trust under the Business Trust Act of the State of
Delaware (12 Del. Code Sec. 801 et seq.) pursuant to a declaration of trust
dated as of October 7, 1996 (the "Original Declaration"), and the filing of a
certificate of trust with the Secretary of State of the State of Delaware on
October 7, 1996;
WHEREAS the Original Declaration is to be amended and restated
in its entirety pursuant to an Amended and Restated Declaration of Trust dated
as of December 9, 1996
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(such Amended and Restated Declaration of Trust, as amended from time to time,
the "Declaration of Trust");
WHEREAS the Trust desires to issue its 8.30% Preferred Trust
Securities (the "Preferred Securities") and sell such Preferred Securities to
initial purchasers;
WHEREAS, in connection with such purchases of Preferred
Securities and the related purchase by the Company of the Common Securities (as
defined in the Declaration of Trust) of the Trust, the Trust will purchase as
trust assets Series 8.30% Debentures;
WHEREAS, pursuant to the Declaration of Trust, the legal title
to the Series 8.30% Debentures shall be held by and in the name of The Chase
Manhattan Bank or its successor under the Declaration of Trust, as Property
Trustee (the "Property Trustee"), in trust for the benefit of holders of the
Preferred Securities and the Common Securities;
WHEREAS, upon the occurrence of a Special Event (as defined in
the Declaration of Trust), the Regular Trustees (as defined in the Declaration
of Trust) of the Trust shall, unless the Series 8.30% Debentures are redeemed as
described herein, dissolve the Trust and cause to be distributed to the holders
of the Preferred Securities and Common Securities, on a pro rata basis
(determined as provided in the terms of the Preferred Securities and Common
Securities attached as Exhibits B and C to the Declaration of Trust), Series
8.30% Debentures and, in connection with a Liquidation Distribution (as defined
in the Declaration of Trust), the Regular Trustees may cause to be distributed
to holders of Preferred Securities and Common Securities, on such pro rata
basis, Series 8.30% Debentures (each a "Dissolution Event"); and
WHEREAS the Company desires and has requested the Trustee to
join with it in the execution and delivery of this First Supplemental Indenture,
and all requirements necessary to make this First Supplemental Indenture a valid
instrument, enforceable in accordance with its terms, and to make the Series
8.30% Debentures, when executed by the Company and authenticated and delivered
by the Trustee, the valid obligations of the Company, have been performed and
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fulfilled, and the execution and delivery of this Supplemental Indenture and the
Series 8.30% Debentures have been in all respects duly authorized.
NOW, THEREFORE, in consideration of the purchase and
acceptance of the Series 8.30% Debentures by the holders thereof, and for the
purpose of setting forth, as provided in the Indenture, the form of the Series
8.30% Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
General Terms and Conditions of
the Series 8.30% Debentures
SECTION 1.01. There shall be and is hereby authorized a series
of Debentures designated the "8.30% Junior Subordinated Debentures Due 2036",
limited in aggregate principal amount to $180,412,375 (except as provided in
this Section 1.01 and Section 6.01). Upon exercise of the overallotment option
set forth in the Underwriting Agreement (as defined in the Declaration of
Trust), additional Series 8.30% Debentures in the aggregate principal amount of
up to $27,061,875 may be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver
said Series 8.30% Debentures to or upon the written order of the Company, which
order shall be accompanied by evidence satisfactory to the Trustee that the
overallotment option has been exercised. The Series 8.30% Debentures shall
mature and the principal thereof shall be due and payable, together with all
accrued and unpaid interest thereon, including Compounded Interest (as defined
below) on December 1, 2036.
SECTION 1.02. (a) Except as provided in Section 1.02(b), the
Series 8.30% Debentures shall be issued in definitive registered certificated
form without interest coupons. Principal and interest on the Series 8.30%
Debentures issued in certificated form will be payable, the transfer of such
Series 8.30% Debentures will be registrable
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and such Series 8.30% Debentures will be exchangeable for Series 8.30%
Debentures bearing identical terms and provisions at the office or agency of the
Company in the Borough of Manhattan, The City and State of New York; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered holder at such address as shall appear in the
Debenture register and that the payment of principal with respect to the Series
8.30% Debentures will only be made upon surrender of the Series 8.30% Debentures
to the Trustee. Notwithstanding the foregoing, so long as the Property Trustee
is the record holder of Series 8.30% Debentures, the payment of the principal
of, and interest (including Compounded Interest, if any) on, the Series 8.30%
Debentures held of record by the Property Trustee will be made by the Company in
immediately available funds on the payment date therefor to the Property Account
(as defined in the Declaration of Trust) established and maintained by the
Property Trustee pursuant to the Declaration of Trust.
(b) In connection with a Dissolution Event:
(i) Series 8.30% Debentures in certificated form in an
aggregate principal amount equal to the aggregate liquidation amount of
all Preferred Securities held in book-entry form may be presented to
the Trustee by the Property Trustee in exchange for a Global Debenture
representing such Series 8.30% Debentures, such Global Debenture to be
registered in the name of the Depositary, or its nominee, and delivered
by the Trustee to the Depositary pursuant to the instructions of the
Regular Trustees (as defined in the Declaration of Trust) for crediting
to the accounts of the Depositary's participants. The Company, upon any
such presentation, shall execute a Global Debenture representing the
Series 8.30% Debentures in such aggregate principal amount and deliver
the same to the Trustee for authentication and delivery in accordance
with the Indenture and this First Supplemental Indenture. Payments on
the Series 8.30% Debentures issued as a Global Debenture will be made
to the Depositary.
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(ii) If any Preferred Securities are held in non book-entry
certificated form ("Non Book-Entry Preferred Securities"), Series 8.30%
Debentures in certificated form in an aggregate principal amount equal
to the aggregate liquidation amount of any such Non Book-Entry
Preferred Securities may be presented to the Trustee by the Property
Trustee, and any Preferred Security Certificate (as defined in the
Declaration of Trust) held in non book-entry certificated form will be
deemed to represent beneficial interests in such Series 8.30%
Debentures presented to the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of
the Non Book-Entry Preferred Securities represented by such Preferred
Security Certificate until such Preferred Security Certificate is
presented to the Debenture Registrar for registration of transfer or
reissuance, at which time such Preferred Security Certificate will be
canceled and a Series 8.30% Debenture, registered in the name of the
holder of such Preferred Security Certificate or the transferee of the
holder of such Preferred Security Certificate, as the case may be, with
an aggregate principal amount equal to the aggregate liquidation amount
of the Preferred Security Certificate canceled will be executed by the
Company and delivered to the Trustee for authentication and delivery in
accordance with the Indenture and this First Supplemental Indenture. On
issue of such Series 8.30% Debentures, Series 8.30% Debentures with an
equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been canceled.
SECTION 1.03. Each Series 8.30% Debenture will bear interest
at the rate of 8.30% per annum from December 9, 1996 until the principal thereof
becomes due and payable, and on any overdue principal, and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum, compounded monthly, payable
(subject to the provisions of Article III) monthly in arrears on the first day
of each month (each, an "Interest Payment Date", commencing on January 1, 1997),
to the Person in whose name such Series 8.30% Debenture (or one or more
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Predecessor Debentures) is registered at the close of business on the regular
record date for such interest installment, which, except as set forth below,
shall be, in respect of any Series 8.30% Debentures represented by a Global
Debenture or of which the Property Trustee is the registered holder, the close
of business on the Business Day next preceding the Interest Payment Date with
respect to such interest installment. Notwithstanding the foregoing sentence, if
the Preferred Securities are no longer in book- entry only form or if, pursuant
to the provisions of Section 2.11(c) of the Indenture, the Series 8.30%
Debentures are no longer represented solely by a Global Debenture, the regular
record date for such interest installment shall be the close of business on the
fifteenth day of the month immediately preceding the month in which the Interest
Payment Date with respect to such interest installment occurs. Any installment
of interest not punctually paid or duly provided for shall forthwith cease to be
payable to the registered holder of a Series 8.30% Debenture on such regular
record date and may be paid to the Person in whose name such Series 8.30%
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof to be given to the registered holders of
the Series 8.30% Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Series 8.30%
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months and for any period
shorter than a 30-day period for which interest is computed, the amount of
interest payable will be computed on the basis of the actual number of days
elapsed. In the event that any date on which interest is payable on the Series
8.30% Debentures is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the
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immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
ARTICLE II
Optional Redemption of the Series
8.30% Debentures
SECTION 2.01. Except as provided in Section 2.02, Series 8.30%
Debentures may not be redeemed by the Company prior to December 1, 2001. Subject
to the terms of Article III of the Indenture, the Company shall have the right
to redeem the Series 8.30% Debentures, in whole or in part, at any time or from
time to time, on or after December 1, 2001, at a redemption price equal to 100%
of the principal amount to be redeemed plus any accrued and unpaid interest
thereon, including Compounded Interest, if any, to the date of such redemption
(the "Optional Redemption Price"). Any redemption pursuant to this Section will
be made upon not less than 30 nor more than 60 days' notice.
SECTION 2.02. If, at any time, a Tax Event (as defined below)
shall occur or be continuing and (i) the Regular Trustees and the Company shall
have received an opinion (a "Redemption Tax Opinion") of nationally recognized
independent tax counsel experienced in such matters that, as a result of such
Tax Event, there is more than an insubstantial risk that the Company would be
precluded from deducting the interest on the Series 8.30% Debentures for United
States Federal income tax purposes even if the Series 8.30% Debentures were
distributed to the holders of Preferred Securities and Common Securities in
liquidation of such holders' interest in the Trust as set forth in the
Declaration of Trust or (ii) the Regular Trustees shall have been informed by
such tax counsel that a No Recognition Opinion (as defined below) cannot be
delivered to the Trust, the Company shall have the right, upon not less than 30
or more than 60 days notice, to redeem the Series 8.30% Debentures in whole or
in part for cash at the Optional Redemption Price within 90 days following the
occurrence of such Tax Event; provided, however, that, if at the time there is
available to the Company or the Regular Trustees, on behalf of the Trust, the
opportunity to
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eliminate, within such 90-day period, such Tax Event by taking some ministerial
action ("Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar reasonable measure that has no adverse effect on the
Trust, the Company or the holders of the Preferred Securities, then the Company
or the Regular Trustees, on behalf of the Trust, will pursue such measure in
lieu of redemption; and provided further that the Company shall have no right to
redeem the Series 8.30% Debentures while the Regular Trustees, on behalf of the
Trust, are pursuing any such Ministerial Action.
"Tax Event" means that the Regular Trustees and the Company
shall have obtained an opinion of nationally recognized independent tax counsel
experienced in such matters (a "Dissolution Tax Opinion") to the effect that on
or after December 4, 1996 as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, (b) any amendment to, or change (including any
announced prospective change) in, an interpretation or application of any such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
effective or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after December 4, 1996, there is more
than an insubstantial risk that (i) the Trust, is, or will be within 90 days of
the date thereof, subject to United States Federal income tax with respect to
income accrued or received on the Series 8.30% Debentures, (ii) the Trust is, or
will be within 90 days of the date thereof, subject to more than a de minimis
amount of other taxes, duties or other governmental charges or (iii) interest
payable by the Company to the Trust on the Series 8.30% Debentures is not, or
within
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90 days of the date thereof will not be, deductible by the Company for United
States Federal income tax purposes.
"No Recognition Opinion" means an opinion of nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue rulings of the Internal
Revenue Service, to the effect that the holders of the Preferred Securities will
not recognize any gain or loss for United States Federal income tax purposes as
a result of a dissolution of the Trust and distribution of the Series 8.30%
Debentures as provided in the Declaration of Trust.
SECTION 2.03. If the Series 8.30% Debentures are only
partially redeemed pursuant to this Article II, the Series 8.30% Debentures will
be redeemed pro rata or by lot or by any other equitable method chosen by the
Trustee; provided that if, at the time of redemption, any Series 8.30%
Debentures are represented by a Global Debenture, the Depositary shall determine
the principal amount of such Series 8.30% Debentures held by each
Debentureholder to be redeemed in accordance with its customary procedures.
Notwithstanding the foregoing, if a partial redemption of the Series 8.30%
Debentures would result in the delisting of the Preferred Securities by any
national securities exchange on which the Preferred Securities are then listed,
the Company shall not be permitted to effect such partial redemption and will
only redeem the Series 8.30% Debentures in whole.
ARTICLE III
Extension of Interest Payment Period
SECTION 3.01. So long as the Company is not in default in the
payment of interest on the Series 8.30% Debentures, the Company shall have the
right, at any time during the term of the Series 8.30% Debentures, from time to
time to extend the interest payment period of the Series 8.30% Debentures for a
period not exceeding 60 consecutive monthly interest periods (an "Extended
Interest Payment Period"); provided, however, that at the end of any such period
the Company shall pay all interest accrued and unpaid
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thereon (together with interest on such accrued and unpaid interest at the rate
of 8.30% per annum, to the extent permitted by applicable law, compounded
monthly ("Compounded Interest")); and provided, further that an Extended
Interest Payment Period may not extend beyond the maturity of the Series 8.30%
Debentures. During any Extended Interest Payment Period, the Company shall not
declare or pay any dividends on, or redeem, purchase, acquire or make a
distribution or liquidation payment with respect to, any of its common stock or
preferred stock or make any payments on guarantees with respect thereto;
provided, however, that the foregoing restrictions shall not apply to (i)
dividends, redemptions, purchases, acquisitions, distributions or payments made
by the Company by way of issuance of shares of its capital stock, (ii) payments
of accrued dividends by the Company upon the redemption, exchange or conversion
of any preferred stock of the Company as may be outstanding from time to time in
accordance with the terms of such preferred stock or (iii) cash payments made by
the Company in lieu of delivering fractional shares upon the redemption,
exchange or conversion of any preferred stock of the Company as may be
outstanding from time to time in accordance with the terms of such preferred
stock. Prior to the termination of any Extended Interest Payment Period, the
Company may pay all or any portion of the interest accrued on the Series 8.30%
Debentures on any Interest Payment Date to holders of record on the regular
record date for such Interest Payment Date or from time to time further extend
such Extended Interest Payment Period; provided that such Extended Interest
Payment Period together with all such previous and further extensions thereof
may not exceed 60 consecutive monthly interest periods. Upon the termination of
any Extended Interest Payment Period and upon the payment of all accrued and
unpaid interest then due, together with Compounded Interest, the Company may
select a new Extended Interest Payment Period. No interest shall be due and
payable during an Extended Interest Payment Period, except at the end thereof.
At the end of any Extended Interest Payment Period, the Company shall pay all
interest accrued and unpaid on the Series 8.30% Debentures, including any
Compounded Interest, to the holders in whose names the Series 8.30% Debentures
are registered on the Debenture Register on the regular record date for the
first Interest
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Payment Date occurring at or after the end of the Extended Interest Payment
Period.
SECTION 3.02. (a) So long as the Property Trustee is the sole
record holder of the Series 8.30% Debentures, at the time the Company selects an
Extended Interest Payment Period, the Company shall give both the Property
Trustee and the Trustee written notice of its selection of such Extended
Interest Payment Period at least one Business Day prior to the earlier of (i)
the next succeeding date on which distributions on the Preferred Securities are
payable and (ii) the date on which the Trust is required to give notice of the
record or payment date for such distribution to the New York Stock Exchange (if
the Preferred Securities are then listed thereon) or other applicable
self-regulatory organization or to holders of the Preferred Securities, but in
any event not less than one Business Day prior to such record date. The Company
shall cause the Trust to give notice to the holders of the Preferred Securities
of the Company's selection of such Extended Interest Payment Period.
(b) If as a result of a Dissolution Event, Series 8.30%
Debentures have been distributed to holders of Preferred Securities and Common
Securities, at the time the Company selects an Extended Interest Payment Period,
the Company shall give the holders of the Series 8.30% Debentures and the
Trustee written notice of its selection of such Extended Interest Payment Period
at least 10 Business Days prior to the earlier of (i) the next succeeding
Interest Payment Date or (ii) the date the Company is required to give notice of
the record or payment date for such interest payment to the New York Stock
Exchange (if the Series 8.30% Debentures are then listed thereon) or other
applicable self-regulatory organization or to holders of the Series 8.30%
Debentures.
SECTION 3.03. The month in which any notice is given pursuant
to Section 3.02 shall be counted as one of the 60 consecutive monthly interest
periods permitted in the maximum Extended Interest Payment Period permitted
under this Article III.
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ARTICLE IV
Covenants Applicable to Series 8.30% Debentures
SECTION 4.01. So long as any Preferred Securities remain
outstanding, the Company will not declare or pay any dividends on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect to,
any of its common stock or preferred stock or make any payments on guarantees
with respect thereto if at such time (i) the Company shall be in default with
respect to its Guarantee Payments (as defined in the Guarantee Agreement dated
as of December 9, 1996 (the "Guarantee Agreement"), between the Company and The
Chase Manhattan Bank, as Guarantee Trustee) or other payment obligations under
the Guarantee Agreement or (ii) there shall have occurred any Event of Default
under the Indenture with respect to the Series 8.30% Debentures; provided,
however, that the foregoing restrictions shall not apply to (i) dividends,
redemptions, purchases, acquisitions, distributions or payments made by the
Company by way of issuance of shares of its capital stock, (ii) payments of
accrued dividends by the Company upon the redemption, exchange or conversion of
any preferred stock of the Company as may be outstanding from time to time in
accordance with the terms of such preferred stock or (iii) cash payments made by
the Company in lieu of delivering fractional shares upon the redemption,
exchange or conversion of any preferred stock of the Company as may be
outstanding from time to time in accordance with the terms of such preferred
stock.
SECTION 4.02. In connection with the distribution of the
Series 8.30% Debentures to the holders of the Preferred Securities upon a
Dissolution Event, the Company will use its best efforts to list such Series
8.30% Debentures on the New York Stock Exchange or on such other exchange as the
Preferred Securities are then listed.
SECTION 4.03. The Company covenants and agrees for the benefit
of the holders of the Preferred Securities to comply fully with all its
obligations and agreements under the Declaration of Trust, including, without
limitation, its obligations under Article IV thereof.
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SECTION 4.04. Prior to the distribution of Series 8.30%
Debentures to the holders of Preferred Securities upon a Dissolution Event, the
Company covenants and agrees for the benefit of the holders of the Preferred
Securities (i) to remain the sole direct or indirect owner of all Common
Securities issued by the Trust and not to cause or permit the Common Securities
to be transferred except to the extent permitted by the Declaration of Trust;
provided that any permitted successor of the Company under the Indenture may
succeed to the Company's ownership of such Common Securities and (ii) to use
reasonable efforts to cause the Trust to continue to be treated as a grantor
trust for United States Federal income tax purposes, except in connection with a
distribution of the Series 8.30% Debentures as provided in the Declaration of
Trust.
ARTICLE V
Form of Series 8.30% Debentures
SECTION 5.01. The Series 8.30% Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially in
the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS A GLOBAL DEBENTURE, INSERT: This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures registered in the name
of a Person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in such limited
circumstances.
UNLESS THIS GLOBAL DEBENTURE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR
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PAYMENT, AND ANY DEBENTURE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No.: $
CUSIP No.: 69366E 20 1
XXXXX XXXXXX GROUP INC.
8.30% JUNIOR SUBORDINATED DEBENTURE
DUE 2036
Xxxxx Xxxxxx Group Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of Dollars
on December 1, 2036 and to pay interest on said principal sum from December 9,
1996, or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided for,
monthly (subject to deferral as set forth herein) in arrears on the first day of
each month commencing January 1, 1997, at the rate of 8.30% per annum, until the
principal hereof shall have become due and payable, and on any overdue principal
and (to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per annum,
compounded monthly. The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months and for any
period shorter than a 30-day period for which interest is computed, the amount
of
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interest payable will be computed on the basis of the actual number of days
elapsed. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture referred to on the reverse side hereof, be paid to the
Person in whose name this Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the regular record date for such interest
installment, which shall be the close of business on the Business Day next
preceding such Interest Payment Date; provided, however, that if the Preferred
Securities are no longer in book-entry only form or if, pursuant to the
provisions of Section 2.11(c) of the Indenture, the Series 8.30% Debentures are
no longer represented solely by a Global Debenture, the regular record date
shall be the close of business on the fifteenth day of the month immediately
preceding the month in which such Interest Payment Date occurs. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered holder of this Debenture on such regular
record date, and may be paid to the Person in whose name this Debenture (or one
or more Predecessor Debentures) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof to be given to the registered holders of this series of
Debentures not less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Series 8.30% Debentures may
be listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The principal of, and the interest on, this
Debenture shall be payable at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City and State of New York in such
coin or currency of the United States of America as at the
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time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall appear
in the Debenture Register and that the payment of principal will only be made
upon the surrender of this Debenture to the Trustee. Notwithstanding the
foregoing, so long as the record holder of this Debenture is the Property
Trustee (as defined in the Indenture), the payment of the principal of, and
interest on, this Debenture will be made to such account of the Property Trustee
as may be designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact, for
any and all such purposes. Each Debentureholder, by his acceptance hereof hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such Holder upon
such provisions.
Unless the Certificate of Authentication hereon has been
executed by the Trustee referred to on the reverse side hereof, this Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
Date:
XXXXX XXXXXX GROUP INC.,
by
-----------------------------------
Name:
Title:
Attest:
-------------------------
Secretary
19
18
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
The Chase Manhattan Bank, The Chase Manhattan Bank,
as Trustee, as Trustee,
by
-----------------------
or as Authentication Agent
by by
------------------------ ------------------------
Authorized Officer Authorized Officer
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Debentures of the Company (herein sometimes referred to as the "Debentures"),
all issued or to be issued in one or more series under and pursuant to an
Indenture dated as of December 9, 1996, duly executed and delivered between the
Company and The Chase Manhattan Bank, a New York banking corporation, as Trustee
(herein referred to as the "Trustee"), as supplemented by the First Supplemental
Indenture dated as of December 9, 1996, between the Company and the Trustee
(said Indenture as so supplemented being hereinafter referred to as the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Debentures, and, to the extent specifically set forth in the
Indenture, the holders of Senior Indebtedness and Preferred Securities. By the
terms of the Indenture, the Debentures are issuable
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in series which may vary as to amount, date of maturity, rate of interest and in
other respects as in the Indenture provided. This series of Debentures is
designated the 8.30% Junior Subordinated Debentures due 2036 (the "Series 8.30%
Debentures") and is limited in aggregate principal amount as specified in said
First Supplemental Indenture.
Except as provided in the next paragraph, the Series 8.30%
Debentures may not be redeemed by the Company prior to December 1, 2001. The
Company shall have the right to redeem the Series 8.30% Debentures, in whole or
in part, at any time or from time to time on or after December 1, 2001 (an
"Optional Redemption"), at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest, including any
Compounded Interest, thereon to the date of such redemption. Any redemption
pursuant to this paragraph will be made upon not less than 30 nor more 60 days
notice. If the Debentures are only partially redeemed by the Company pursuant to
an Optional Redemption, the Series 8.30% Debentures will be redeemed pro rata or
by lot or by any other equitable method chosen by the Trustee; provided that if,
at the time of redemption, any Series 8.30% Debentures are represented by a
Global Debenture, the Depository shall determine the principal amount of such
Series 8.30% Debentures held by each holder of Series 8.30% Debentures to be
redeemed in accordance with its customary procedures.
If, at any time, a Tax Event (as defined below) shall occur or
be continuing and (i) the Regular Trustees and the Company shall have received
an opinion (a "Redemption Tax Opinion") of nationally recognized independent tax
counsel experienced in such matters that, as a result of such Tax Event, there
is more than an insubstantial risk that the Company would be precluded from
deducting the interest on the Series 8.30% Debentures for United States Federal
income tax purposes even if the Series 8.30% Debentures were distributed to the
holders of Preferred Securities and Common Securities in liquidation of such
holders' interest in the Trust as set forth in the Declaration of Trust or (ii)
the Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion (as defined below) cannot be delivered to the Trust, the
Company shall have the right, upon not less than 30 nor
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20
more than 60 days notice, to redeem the Series 8.30% Debentures in whole or in
part for cash at the Optional Redemption Price within 90 days following the
occurrence of such Tax Event; provided, however, that, if at the time there is
available to the Company or the Regular Trustees, on behalf of the Trust, the
opportunity to eliminate, within such 90-day period, the Tax Event by taking
some ministerial action ("Ministerial Action"), such as filing a form or making
an election, or pursuing some other similar reasonable measure, which has no
adverse effect on the Trust, the Company or the holders of the Preferred
Securities, the Company or the Regular Trustees, on behalf of the Trust, will
pursue such measure in lieu of redemption; and provided further that the Company
shall have no right to redeem the Series 8.30% Debentures while the Regular
Trustees, on behalf of the Trust, are pursuing any such Ministerial Action.
"Tax Event" means that the Regular Trustees and the Company
shall have obtained an opinion of nationally recognized independent tax counsel
experienced in such matters (a "Dissolution Tax Opinion") to the effect that on
or after December 4, 1996, as a result of (a) any amendment to, or change (or
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to, or change (including any announced prospective
change) in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination), (c) any interpretation or pronouncement
that provides for a position with respect to such laws or regulations that
differs from the theretofore generally accepted position or (d) any action taken
by any governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or effective or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after December 4, 1996, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject to United
States Federal income tax with respect to income accrued or received on the
Series 8.30%
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21
Debentures, (ii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges or (iii) interest payable by the Company to the Trust on
the Series 8.30% Debentures is not, or within 90 days of the date thereof will
not be, deductible by the Company for United States Federal income tax purposes.
"No Recognition Opinion" means an opinion of nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue rulings of the Internal
Revenue Service, to the effect that the holders of the Preferred Securities will
not recognize any gain or loss for United States Federal income tax purposes as
a result of a dissolution of the Trust and distribution of the Series 8.30%
Debentures as provided in the Declaration of Trust.
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption or as a result of a Tax Event as described
above, the Debentures will be redeemed pro rata or by lot or by any other
equitable method chosen by the Trustee. Notwithstanding the foregoing, if a
partial redemption of the Series 8.30% Debentures would result in the delisting
of the Preferred Securities by any national securities exchange on which the
Preferred Securities are then listed, the Company shall not be permitted to
effect such partial redemption and will only redeem the Series 8.30% Debentures
in whole.
In the event of redemption of this Debenture in part only, a
new Series 8.30% Debenture or Debentures will be issued for the unredeemed
portion hereof in the name of the holder hereof upon the cancellation of this
Debenture.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Series 8.30%
Debentures may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions for defeasance
at any time of the entire indebtedness of the Series 8.30%
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22
Debentures upon compliance by the Company with certain conditions set forth
therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
outstanding, as defined in Section 8.04 of the Indenture, (and, in the case of
any series of Debentures held as trust assets of a PWG Capital Trust and with
respect to which a Security Exchange has not theretofore occurred, such consent
of holders of the Preferred Securities and the Common Securities of such PWG
Capital Trust as may be required under the Declaration of Trust of such PWG
Capital Trust), to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of any series of Debentures; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the holder of each
Debenture so affected or (ii) reduce the aforesaid percentage of Debentures, the
holders of which are required to consent to any such supplemental indenture,
without the consent of the holders of each Debenture (and, in the case of any
series of Debentures held as trust assets of a PWG Capital Trust and with
respect to which a Security Exchange has not theretofore occurred, such consent
of the holders of the Preferred Securities and the Common Securities of such PWG
Capital Trust as may be required under the Declaration of Trust of such PWG
Capital Trust) then outstanding and affected thereby. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Debentures of a series at the time outstanding affected thereby
(subject, in the case of any series of Debentures held as trust assets of a PWG
Capital Trust and with respect to which a Security Exchange has not theretofore
occurred, to such consent of holders of Preferred Securities and Common
Securities of such PWG Capital Trust as may be required under the Declaration of
24
23
Trust of such PWG Capital Trust), on behalf of the holders of the Debentures of
such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture
with respect to such series and its consequences, except a default in the
payment of the principal of, or premium, if any, or interest on, any of the
Debentures of such series. Any such consent or waiver by the registered holder
of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Debenture and of any Debenture issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Debenture.
Subject to Section 13.11 of the Indenture, no reference herein
to the Indenture (other than such Section) and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place, at the rate and in the money
herein prescribed.
So long as the Company is not in default in the payment of
interest on the Series 8.30% Debentures, the Company shall have the right, at
any time during the term of the Series 8.30% Debentures, from time to time to
extend the interest payment period of the Series 8.30% Debentures for a period
not exceeding 60 consecutive monthly interest periods (an "Extended Interest
Payment Period"); provided, however, that at the end of any such period the
Company shall pay all interest accrued and unpaid thereon, together with any
Compounded Interest; and provided, further that an Extended Interest Payment
Period may not extend beyond the maturity of the Series 8.30% Debentures. During
any Extended Interest Payment Period, the Company shall not declare or pay any
dividends on, or redeem, purchase, acquire or make a distribution or liquidation
payment with respect to, any of its common stock or preferred stock, or make any
payments on guarantees with respect thereto; provided, however, that the
foregoing restrictions shall not apply to (i) dividends, redemptions, purchases,
acquisitions, distributions or payments made by the Company by way of issuance
of shares of
25
24
its capital stock, (ii) payments of accrued dividends by the Company upon the
redemption, exchange or conversion of any preferred stock of the Company as may
be outstanding from time to time in accordance with the terms of such preferred
stock or (iii) cash payments made by the Company in lieu of delivering
fractional shares upon the redemption, exchange or conversion of any preferred
stock of the Company as may be outstanding from time to time in accordance with
the terms of such preferred stock. Prior to the termination of any Extended
Interest Payment Period, the Company may pay all or any portion of the interest
accrued on the Series 8.30% Debentures on any Interest Payment Date to holders
of record on the regular record date for such Interest Payment Date or from time
to time further extend such Extended Interest Payment Period; provided that such
Extended Interest Payment Period together with all such previous and further
extensions thereof may not exceed 60 consecutive monthly interest periods. Upon
the termination of any Extended Interest Payment Period and upon the payment of
all accrued and unpaid interest then due, together with Compounded Interest, the
Company may select a new Extended Interest Payment Period. No interest shall be
due and payable during an Extended Interest Payment Period, except at the end
thereof. At the end of any Extended Interest Payment Period, the Company shall
pay all interest accrued and unpaid on the Series 8.30% Debentures, including
any Compounded Interest which shall be payable to the holders in whose names the
Series 8.30% Debentures are registered on the Debenture Register on the regular
record date for the first Interest Payment Date occurring on or after the end of
the Extended Interest Payment Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the registered
holder hereof on the Debenture Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Company
designated for such purpose in the Borough of Manhattan, The City and State of
New York, accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Debenture Registrar duly executed by the
registered holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Series 8.30% Debentures of
26
25
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Debenture
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any paying agent nor any Debenture Registrar
shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Indenture, or of this Debenture, or for any claim based thereon
or hereon, or otherwise in respect thereof or hereof shall be had against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Debenture and the obligations represented hereunder are
solely corporate obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators, stockholders,
officers or directors, as such, of the Company or of any predecessor or
successor corporation, or any of them, because of the creation of this
indebtedness, or under or by reason of the obligations covenants or agreements
contained in the Indenture or this Debenture or implied therefrom; and that any
and all such personal liability of every name and nature, either at common law
or in equity or by constitution or statute, and any and all such rights and
claims against every such incorporator, stockholder, officer or director, as
such,
27
26
because of the creation of this indebtedness, or under or by reason of the
obligations, covenants or agreements contained in the Indenture or in this
Debenture or implied therefrom, are hereby expressly waived and released by the
acceptance hereof and as a condition of, and as a consideration for, the
execution of the Indenture and the issuance of this Debenture.
[IF THE DEBENTURE IS A GLOBAL DEBENTURE INSERT: This Global
Debenture is exchangeable for Debentures in definitive form under certain
limited circumstances set forth in the Indenture.]
The Series 8.30% Debentures are issuable only in registered
form without interest coupons in denominations of $25 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations [IF THE
DEBENTURE IS A GLOBAL DEBENTURE, INSERT: herein and] therein set forth, Series
8.30% Debentures are exchangeable for a like aggregate principal amount of
Series 8.30% Debentures of a different authorized denomination, as requested by
the holder surrendering the same.
Terms used and not defined in this Debenture shall have the
meanings assigned to them in the Indenture.
ARTICLE VI
Original Issue of Series 8.30% Debentures
SECTION 6.01. Except as provided in Section 1.01 and this
Section 6.01, Series 8.30% Debentures in the aggregate principal amount equal to
$180,412,375 may, upon execution of this First Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and make available for delivery said Series
8.30% Debentures to or upon the written order of the Company, signed by its
Chairman of the Board, its Vice-Chairman of the Board, its President or any Vice
President and by its Treasurer or any Assistant Treasurer or its Controller or
any Assistant Controller or its Secretary or any Assistant Secretary, without
any further action by the Company. Upon exercise of the overallotment option set
forth in the
28
27
Underwriting Agreement, additional Series 8.30% Debentures in the aggregate
principal amount of up to $27,061,875 may be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Series 8.30% Debentures to or
upon the written order of the Company, which order shall be accompanied by
evidence satisfactory to the Trustee that the overallotment option has been
exercised.
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Except as otherwise expressly provided in this
First Supplemental Indenture or in the form of Series 8.30% Debenture or
otherwise clearly required by the context hereof or thereof, all terms used
herein or in said form of Series 8.30% Debenture that are defined in the
Indenture shall have the several meanings respectively assigned to them thereby.
SECTION 7.02. The Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed. This First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 7.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee
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28
assumes no responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this First Supplemental
Indenture.
SECTION 7.04. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
XXXXX XXXXXX GROUP INC.,
by
-------------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
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29
THE CHASE MANHATTAN BANK, as
Trustee,
by
-------------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
31
TABLE OF CONTENTS
Page
ARTICLE I
General Terms and Conditions of
the Series 8.30% Debentures
SECTION 1.01........................................................... 3
SECTION 1.02........................................................... 3
SECTION 1.03........................................................... 5
ARTICLE II
Optional Redemption of the Series
8.30% Debentures
SECTION 2.01........................................................... 6
SECTION 2.02........................................................... 6
SECTION 2.03........................................................... 8
ARTICLE III
Extension of Interest Payment Period
SECTION 3.01.............................................................. 9
SECTION 3.02........................................................... 10
SECTION 3.03........................................................... 10
ARTICLE IV
Covenants Applicable to Series 8.30% Debentures
SECTION 4.01........................................................... 11
SECTION 4.02........................................................... 11
SECTION 4.03........................................................... 11
SECTION 4.04........................................................... 12
32
Contents, p. 2
Page
ARTICLE V
Form of Series 8.30% Debentures
SECTION 5.01........................................................... 12
ARTICLE VI
Original Issue of Series 8.30% Debentures
SECTION 6.01........................................................... 25
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01........................................................... 25
SECTION 7.02........................................................... 25
SECTION 7.03........................................................... 25
SECTION 7.04........................................................... 26
