FIRST SUPPLEMENTAL INDENTURE
Dated as of March 23, 1998
between
XXXXXXXXX-XXXX COMPANY
AS ISSUER
and
THE BANK OF NEW YORK
AS TRUSTEE
TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS 1
SECTION 1.1. Definition of Terms 1
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES 3
SECTION 2.1. Designation and Principal Amount 3
SECTION 2.2. Maturity 3
SECTION 2.3. Form and Payment 3
SECTION 2.4. Global Debenture 3
SECTION 2.5. Interest 4
ARTICLE III
REDEMPTION OF THE DEBENTURES 5
SECTION 3.1. Tax Event Redemption 5
SECTION 3.2. Redemption Procedure for Debentures 5
SECTION 3.3. No Sinking Fund 6
SECTION 3.4. Option to Put Debentures upon a Failed Remarketing 6
SECTION 3.5. Repurchase Procedure for Debentures 6
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD 6
SECTION 4.1. Extension of Interest Payment Period 6
SECTION 4.2. Notice of Extension 7
ARTICLE V
EXPENSES 8
SECTION 5.1. Payment of Expenses 8
SECTION 5.2. Payment Upon Resignation or Removal 8
ARTICLE VI
NOTICE 8
SECTION 6.1. Notice by the Company 8
ARTICLE VII
FORM OF DEBENTURE 9
SECTION 7.1. Form of Debenture 9
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES 17
SECTION 8.1. Original Issue of Debentures 17
ARTICLE IX
MISCELLANEOUS 17
SECTION 9.1. Ratification of Indenture 17
SECTION 9.2. Trustee Not Responsible for Recitals 17
SECTION 9.3. Governing Law 17
SECTION 9.4. Separability 17
SECTION 9.5. Counterparts. 17
SECTION 9.6. Guarantee and Declaration 18
ARTICLE X
REMARKETING 18
SECTION 10.1. Effectiveness of this Article. 18
SECTION 10.2. Remarketing Procedures. 18
FIRST SUPPLEMENTAL INDENTURE, dated as of March 23, 1998
(the "First Supplemental Indenture"), between XXXXXXXXX-XXXX
COMPANY, a corporation duly organized and existing under the laws
of the State of New Jersey, (the "Company"), and The Bank of New
York, as trustee (the "Trustee").
WHEREAS, the Company executed and delivered the indenture
dated as of March 23, 1998 (the "Base Indenture"), to the Trustee
to provide for the future issuance of the Company's senior
unsecured debentures, notes or other evidence of indebtedness
(the "Securities"), to be issued from time to time in one or more
series as might be determined by the Company under the Base
Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the
Company desires to provide for the establishment of a new series
of its Securities to be known as its 6.22% Debentures due May 16,
2003 (the "Debentures"), the form and substance of such
Debentures and the terms, provisions and conditions thereof to be
set forth as provided in the Base Indenture and this First
Supplemental Indenture (together, the "Indenture");
WHEREAS, Xxxxxxxxx-Xxxx Financing I, a Delaware statutory
business trust (the "Trust"), has offered to the public its 6.22%
Capital Securities (the "Capital Securities"), representing,
undivided beneficial ownership interests in the assets of the
Trust, and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust
to the Company of its 6.22% Common Securities (the "Common
Securities" and together with the Capital Securities, the "Trust
Securities"), in the Debentures; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this First Supplemental Indenture and all
requirements necessary to make this First Supplemental Indenture
a valid instrument in accordance with its terms, and to make the
Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company
and all acts and things necessary have been done and performed to
make this First Supplemental Indenture enforceable in accordance
with its terms, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and
acceptance of the Debentures by the Holders thereof, and for the
purpose of setting forth, as provided in the Indenture, the form
and substance of the Debentures and the terms, provisions and
conditions thereof, the Company covenants and agrees with the
Trustee as follows:
ARTICLE I.
DEFINITIONS
SECTION I.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning
when used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do
not affect interpretation;
(e) the following terms have the meanings given to them in
the Declaration: (i) Applicable Principal Amount; (ii)Authorized
Newspaper; (iii) Business Day; (iv) Clearing Agency; (v) Delaware
Trustee; (vi) DTC; (vii) FELINE PRIDES; (viii) Growth PRIDES;
(ix) Income PRIDES; (x) Institutional Trustee; (xi) Investment
Company Event; (xii) Capital Security Certificate; (xiii) Pricing
Agreement; (xiv) Purchase Agreement; (xv) Put Option (xvi)
Quotation Agent; (xvii) Regular Trustees; (xviii) Redemption
Amount, (xix) Reset Agent; (xx) Reset Announcement Date; (xxi)
Reset Spread;(xxii) Tax Event; (xxiii) Tax Event Redemption Date;
(xxvi) Treasury Portfolio Purchase Price; (xxv) Treasury
Portfolio; and (xxvi) Treasury Securities and (xxvii) Two-Year
Benchmark Treasury.
(f) the following terms have the meanings given to them in
this Section 1.11(f):
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section
2.5.
"Custodial Agent" means Chase Manhattan Bank, as Custodial
Agent.
"Debenture Repayment Price" shall have the meaning set forth
in Section 3.4.
"Declaration" means the Amended and Restated Declaration of
Trust of Xxxxxxxxx-Xxxx Financing I, a Delaware statutory
business trust, dated as of March 23, 1998.
"Deferred Interest" shall have the meaning set forth in
Section 4.1 hereof.
"Dissolution Event" means that, as a result of the
occurrence and continuation of a Tax Event, an Investment Company
Event or otherwise, the Trust is to be dissolved in accordance
with the Declaration, and, except in the case of a Tax Event
Redemption, the Debentures held by the Institutional Trustee are
to be distributed to the holders of the Trust Securities issued
by the Trust pro rata in accordance with the Declaration.
"Exchange Agent" means the Institutional Trustee.
"Extended Interest Payment Period" shall have the meaning
set forth in Section 4.1.
"Failed Remarketing" shall have the meaning set forth in
Section 5.4(b) of the Purchase Contract Agreement.
"Global Debentures" shall have the meaning set forth in
Section 2.4.
"Non Book-Entry Capital Securities" shall have the meaning
set forth in Section 2.4 .
"Pledge Agreement" means the Pledge Agreement dated as of
March 23, 1998, among the Company, the Trust, Chase Manhattan
Bank, as collateral agent and The Bank of New York, as purchase
contract agent.
"Purchase Contract" shall have the meaning set forth in the
Purchase Contract Agreement, dated as of March 23, 1998, between
the Company and The Bank of New York, as purchase contract agent.
"Purchase Contract Settlement Date" means May 16, 2001.
"Remarketing Agent" means Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
"Remarketing Agreement" means the Remarketing Agreement,
dated as of March 23, 1998, among the Company, the Trust, Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
as remarketing agent and The Bank of New York, as purchase
contract agent.
"Remarketing Date" shall have the meaning set forth in the
Remarketing Agreement.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION II.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated
the 6.22% Debentures (the "Debentures") due May 16, 2003,
limited in aggregate principal amount to $414,948,475, which
amount shall be as set forth in any written order of the Company
for the authentication and delivery of Debentures pursuant to
Section 303 of the Base Indenture.
SECTION II.2. Maturity. The Maturity Date will be May 16, 2003.
SECTION II.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be
issued in fully registered certificated form without interest
coupons, bearing identical terms. Principal and interest on the
Debentures issued in certificated form will be payable, the
transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures bearing identical
terms and provisions at the office or agency of the Institutional
Trustee; provided, however, that payment of interest may be made
at the option of the Company by check mailed to the Holder at
such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of any
Debentures is the Institutional Trustee, the payment of the
principal of and interest (including Compounded Interest and
expenses and taxes of the Trust set forth in Section 4.1 hereof,
if any) on such Debentures held by the Institutional Trustee will
be made at such place and to such account as may be designated by
the Institutional Trustee.
SECTION II.4. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be
presented to the Trustee by the Institutional Trustee in exchange
for a global Debenture in an aggregate principal amount equal to
the aggregate principal amount of all outstanding Debentures (a
"Global Debenture"), to be registered in the name of the Clearing
Agency, or its nominee, and delivered by the Institutional
Trustee to the Clearing Agency for crediting to the accounts of
its participants pursuant to the instructions of the Regular
Trustees. The Company upon any such presentation shall execute
a Global Debenture in such aggregate principal amount and deliver
the same to the Trustee for authentication and delivery in
accordance with the Indenture. Payments on the Debentures issued
as a Global Debenture will be made to the Clearing Agency; and
(ii) if any Capital Securities are held in non book-
entry certificated form, the Debentures in certificated form may
be presented to the Trustee by the Institutional Trustee and any
Capital Security Certificate which represents Capital Securities
other than Capital Securities held by the Clearing Agency or its
nominee ("Non Book-Entry Capital Securities") will be deemed to
represent beneficial interests in the Debentures presented to the
Trustee by the Institutional Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the
Non Book-Entry Capital Securities until such Capital Security
Certificates are presented to the Security Registrar for transfer
or reissuance at which time such Capital Security Certificates
will be cancelled and a Debenture, registered in the name of the
holder of the Capital Security Certificate or the transferee of
the holder of such Capital Security Certificate, as the case may
be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Capital Security Certificate
cancelled, will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance with the
Indenture to such holder. On issue of such Debentures,
Debentures with an equivalent aggregate principal amount that
were presented by the Institutional Trustee to the Trustee will
be deemed to have been cancelled.
(b) Unless and until it is exchanged for the Debentures in
registered form, a Global Debenture may be transferred, in whole
but not in part, only to another nominee of the Clearing Agency,
or to a successor Clearing Agency selected or approved by the
Company or to a nominee of such successor Clearing Agency.
(c) If at any time the Clearing Agency notifies the Company
that it is unwilling or unable to continue as a Clearing Agency
or if at any time the Clearing Agency for such series shall no
longer be registered or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Clearing Agency for such series is
not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the
case may be, the Company will execute, and, subject to Article
III of the Indenture, the Trustee, upon written notice from the
Company, will authenticate and deliver the Debentures in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture in exchange for such
Global Debenture. In addition, the Company may at any time
determine that the Debentures shall no longer be represented by a
Global Debenture. In such event the Company will execute, and
subject to Section 3.3 of the Base Indenture, the Trustee, upon
receipt of an Officer's Certificate evidencing such determination
by the Company, will authenticate and deliver the Debentures in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture in exchange for such
Global Debenture. Upon the exchange of the Global Debenture for
such Debentures in definitive registered form without coupons, in
authorized denominations, the Global Debenture shall be cancelled
by the Trustee. Such Debentures in definitive registered form
issued in exchange for the Global Debenture shall be registered
in such names and in such authorized denominations as the
Clearing Agency, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Securities to the Clearing Agency
for delivery to the Persons in whose names such Securities are so
registered.
SECTION II.5. Interest.
(a) Each Debenture will bear interest initially at the rate
of 6.22% per annum (the "Coupon Rate") from the original date of
issuance until May 15, 2001, and at the Reset Rate thereafter
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 Coupon Rate until May 15, 2001 and
at the Reset Rate thereafter, compounded quarterly, payable
(subject to the provisions of Article IV herein) quarterly in
arrears on February 16, May 16, August 16 and November 16 of
each year (each, an "Interest Payment Date") commencing on May
16, 1998, to the Person in whose name such Debenture or any
predecessor Debenture is registered, at the close of business on
the Regular Record Date for such interest installment, which, in
respect of (i) Debentures of which the Institutional Trustee is
the Holder and the Capital Securities are in book-entry only form
or (ii) a Global Debenture, shall be the close of business on the
Business Day next preceding that Interest Payment Date.
Notwithstanding the foregoing sentence, if (i) the Debentures are
held by the Institutional Trustee and the Capital Securities are
no longer in book-entry only form or (ii) the Debentures are not
represented by a Global Debenture, the Company may select a
Regular Record Date for such interest installment which shall be
more than one Business Day but less than 60 Business Days prior
to an Interest Payment Date.
(b) The Coupon Rate on the Debentures will be reset on the
third Business Day immediately preceding the Purchase Contract
Settlement Date to the Reset Rate (which Reset Rate will become
effective on and after the Purchase Contract Settlement Date).
On the tenth (10) Business Day immediately preceding the Purchase
Contract Settlement Date, the Reset Announcement Date, the Reset
Spread and the relevant Two-Year Benchmark Treasury will be
announced by the Company. On the Business Day immediately
following such Reset Announcement Date, the Holders of Debentures
will be notified of such Reset Spread and Two-Year Benchmark
Treasury by the Company. Such notice shall be sufficiently given
to such Holders of Debentures if published in an Authorized
Newspaper.
(c) Not later than seven calendar days nor more than 15
calendar days immediately preceding the Reset Announcement Date,
the Company will request that the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee) or the
Institutional Trustee, notify the Holders of Debentures of such
Reset Announcement Date and the procedures to be followed by such
holders of Debentures wishing to settle the related Purchase
Contract with separate cash on the Business Day immediately
preceding the Purchase Contract Settlement Date.
(d) The amount of interest payable for any period will be
computed on the basis of a 360-day year consisting of twelve
30-day months. Except as provided in the following sentence, the
amount of interest payable for any period shorter than a full
quarterly period for which interest is computed, will be computed
on the basis of the actual number of days elapsed in such a
90-day period. In the event that any date on which interest is
payable on the 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 immediately preceding Business Day,
in each case with the same force and effect as if made on such
date.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION III.1. Tax Event Redemption.
If a Tax Event shall occur and be continuing, the Company
may, at its option, redeem the Debentures in whole (but not in
part) at any time at a Redemption Price per Debenture equal to
the Redemption Amount plus accrued and unpaid interest thereon,
including Compounded Interest and the expenses and taxes of the
Trust set forth in Section 4.1 hereof, if any, to the date of
such redemption (the "Tax Event Redemption Date"). If, following
the occurrence of a Tax Event, the Company exercises its option
to redeem the Debentures, then the proceeds of such redemption,
if distributed to the Institutional Trustee as the sole Holder of
such Debentures, will be applied by the Institutional Trustee to
redeem Trust Securities having an aggregate liquidation amount
equal to the aggregate principal amount of the Debentures so
redeemed, at the Redemption Price. If, following the occurrence
of a Tax Event prior to the Purchase Contract Settlement Date,
the Company exercises its option to redeem the Debentures, the
Company shall appoint the Quotation Agent to assemble the
Treasury Portfolio in consultation with the Company. Notice of
any redemption will be mailed at least 30 days but not more than
60 days before the Tax Event Redemption Date to each registered
Holder of the Debentures to be prepaid at its registered address.
Unless the Company defaults in payment of the Redemption Price,
on and after the redemption date interest shall cease to accrue
on such Debentures.
SECTION III.2. Redemption Procedure for Debentures.
Payment of the Redemption Price to each Holder of Debentures
shall be made by the Paying Agent, no later than 12:00 noon, New
York City time, on the Tax Event Redemption Date, by check or
wire transfer in immediately available funds at such place and to
such account as may be designated by each such Holder of
Debentures, including the Institutional Trustee or the Collateral
Agent, as the case may be. If the Trustee holds immediately
available funds sufficient to pay the Redemption Price of the
Debentures (or, if the Company is acting as Paying Agent or the
Institutional Trustee has received the Redemption Price), then,
on such Tax Event Redemption Date, such Debentures will cease to
be outstanding and interest thereon will cease to accrue, whether
or not such Debentures have been received by the Company, and all
other rights of the Holder in respect of the Debentures shall
terminate and lapse (other than the right to receive the
Redemption Price upon delivery of such Debentures but without
interest on such Redemption Price).
SECTION III.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any
sinking fund.
SECTION III.4. Option to Put Debentures upon a Failed
Remarketing.
If a Failed Remarketing (as described in Section 5.4(b) of
the Purchase Contract Agreement and incorporated herein by
reference) has occurred, each holder of Securities who holds such
Securities on the day immediately following the Purchase Contract
Settlement Date, shall, upon at least three Business Days' prior
notice, have the right (the "Put Option") on the Business Day
immediately following May 16, 2001, to require the Trust to
distribute their pro rata share of Debentures to the Exchange
Agent and to require the Exchange Agent to put such Debentures,
on behalf of such holders on June 1, 2001 (the "Put Option
Exercise Date") at a repayment price of $25 per Security plus an
amount equal to the accrued and unpaid Distributions (including
deferred distributions, if any) thereon to the date of payment
(the "Debenture Repayment Price").
SECTION III.5. Repurchase Procedure for Debentures.
(a) In order for the Debentures to be repurchased on
the Put Option Exercise Date, the Company must receive on or
prior to 5:00 p.m. New York City time on the third Business Day
immediately preceding the Put Option Exercise Date, at the
principal executive offices of Xxxxxxxxx-Xxxx Company in
Woodcliff Lake, New Jersey, the Debentures to be repurchased with
the form entitled "Option to Elect Repayment" on the reverse of
or otherwise accompanying such Debentures duly completed. Any
such notice received by the Trustee shall be irrevocable. All
questions as to the validity, eligibility (including time of re
ceipt) and acceptance of the Debentures for repayment shall be
determined by the Company, whose determination shall be final and
binding.
(b) Payment of the Debenture Repayment Price to the
Exchange Agent shall be made through the Trustee, subject to the
Trustee's receipt of payment from the Company in accordance with
the terms of the Indenture either through the Trustee or the
Company acting as Paying Agent, no later than 12:00 noon, New
York City time, on the Put Option Exercise Date, and to such ac
count as may be designated by the Exchange Agent. If the Trustee
holds immediately available funds sufficient to pay the Debenture
Repayment Price of the Debentures presented for repayment (or, if
the Company is acting as Paying Agent and the Institutional
Trustee has received the Debenture Repayment Price), then,
immediately prior to the close of business on the Business Day
immediately preceding the Put Option Exercise Date, such
Debentures will cease to be outstanding and interest thereon will
cease to accrue, whether or not such Debentures have been
received by the Company, and all other rights of the Holder in
respect of the Debentures, including the Holder's right to
require the Company to repay such Debentures, shall terminate and
lapse (other than the right to receive the Debenture Repayment
Price upon delivery of such Debentures but without interest on
such Debenture Repayment Price). Neither the Trustee nor the
Company will be required to register or cease to be registered
the transfer of any Debenture for which repayment has been elect
ed.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION IV.1. Extension of Interest Payment Period.
The Company shall have the right at any time, and from time
to time, during the term of the Debentures, to defer payments of
interest by extending the interest payment period of such
Debentures for a period not extending, in the aggregate, beyond
the Maturity Date of the Debentures (the "Extended Interest
Payment Period"), during which Extended Interest Payment Period
no interest shall be due and payable. To the extent permitted by
applicable law, interest, the payment of which has been deferred
because of the extension of the interest payment period pursuant
to this Section 4.1, will bear interest thereon at the rate of
6.22% until May 15, 2001, and at the Reset Rate thereafter
compounded quarterly for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the
Extended Interest Payment Period, the Company shall pay all
interest accrued and unpaid on the Debentures, including any
expenses and taxes of the Trust set forth in Section 5.1 hereof
and Compounded Interest (together, "Deferred Interest") that
shall be payable to the Holders of the Debentures in whose names
the Debentures are registered in the Security Register on the
first record date after the end of the Extended Interest Payment
Period; provided, however, that during any such Extended Interest
Payment Period, (a) the Company shall not declare or pay
dividends on or make any distribution with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to,
any of its capital stock (other than (i) purchases or
acquisitions of capital stock of the Company in connection with
the satisfaction by the Company of its obligations under any
employee benefit plans or the satisfaction by the Company of its
obligations pursuant to any contract or security outstanding on
the date of such event requiring the Company to purchase capital
stock of the Company, (ii) as a result of a reclassification of
the Company's capital stock or the exchange or conversion of one
class or series of the Company's capital stock for another class
or series of the Company capital stock, (iii) the purchase of
fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (iv)
dividends or distributions in capital stock of the Company (or
rights to acquire capital stock) or repurchases or redemptions of
capital stock solely from the issuance or exchange of capital
stock or (v) redemptions or repurchases of any rights outstanding
under a shareholder rights plan or the declaration thereunder of
a dividend of rights in the future), (b) the Company shall not
make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities issued by the
Company that rank junior to the Debentures, and (c) the Company
shall not make any guarantee payments with respect to the
foregoing (other than payments pursuant to the Guarantee). Prior
to the termination of any Extended Interest Payment Period, the
Company may further extend such period, provided that such period
together with all such previous and further extensions thereof
shall not extend beyond the Maturity Date of the Debentures.
Upon the termination of any Extended Interest Payment Period and
the payment of all Deferred Interest then due, the Company may
commence a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period, except at the end
thereof, but the Company, at its option, may prepay on any
Interest Payment Date all or any portion of the interest accrued
during the then elapsed portion of an Extended Interest Payment
Period.
SECTION IV.2. Notice of Extension.
(a) If the Institutional Trustee is the only registered
Holder of the Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give written
notice to the Regular Trustees, the Institutional Trustee and the
Trustee of its selection of such Extended Interest Payment Period
one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Trust Securities issued by the
Trust are payable, or (ii) the date the Trust is required to give
notice of the record date, or the date such Distributions are
payable, to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Capital
Securities issued by the Trust, but in any event at least one
Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder of
the Debentures at the time the Company selects an Extended
Interest Payment Period, the Company shall give the Holders of
the Debentures and the Trustee written notice of its selection of
such Extended Interest Payment Period at least 10 Business Days
before 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 of such interest payment to the New
York Stock Exchange or other applicable self-regulatory
organization or to Holders of the Debentures.
ARTICLE V
EXPENSES
SECTION V.1. Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Institutional Trustee and in connection with
the sale of the Trust Securities by the Trust, the Company, in
its capacity as borrower with respect to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale
and issuance of the Debentures, including commissions to the
underwriters payable pursuant to the Underwriting Agreement and
the Pricing Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 607 of the
Base Indenture;
(b) pay all costs and expenses of the Trust including, but
not limited to, costs and expenses relating to the organization
of the Trust, the offering, sale and issuance of the Trust
Securities (including commissions to the underwriters in
connection therewith), the fees and expenses of the Institutional
Trustee and the Delaware Trustee, the costs and expenses relating
to the operation of the Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of
Trust assets) to which the Trust might become subject;
(c) be primarily liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and
all liabilities, costs and expenses with respect to such taxes of
the Trust.
SECTION V.2. Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the
Base Indenture or the removal or resignation of the Trustee, the
Company shall pay to the Trustee all amounts accrued to the date
of such termination, removal or resignation. Upon termination of
the Declaration or the removal or resignation of the Delaware
Trustee or the Institutional Trustee, as the case may be, the
Company shall pay to the Delaware Trustee or the Institutional
Trustee, as the case may be, all amounts accrued to the date of
such termination, removal or resignation.
ARTICLE VI
NOTICE
SECTION VI.1. Notice by the Company.
The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article VI. Notwithstanding any of the
provisions of the Base Indenture and this First Supplemental
Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any
payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of the Base Indenture;
provided, however, that if the Trustee shall not have received
the notice provided for in this Article VI at least two Business
Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any)
or interest on any Debenture), then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be affected
by any notice to the contrary that may be received by it within
two Business Days prior to such date.
ARTICLE VII
FORM OF DEBENTURE
SECTION VII.1. Form of Debenture.
The 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 TO BE 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 THE CLEARING AGENCY OR A NOMINEE OR THE CLEARING AGENCY. THIS
DEBENTURE IS EXCHANGEABLE FOR DEBENTURES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE CLEARING AGENCY 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 CLEARING AGENCY TO A NOMINEE OF THE
CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING AGENCY TO THE
CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING AGENCY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.]
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX,
XXX XXXX, XXX XXXX) TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT AND ANY DEBENTURE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., 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.__________________________________
$ __________________________________
XXXXXXXXX-XXXX COMPANY
6.22% DEBENTURE
DUE May 16, 2003
XXXXXXXXX-XXXX COMPANY, a New Jersey corporation (the
"Company", which term includes any successor corporation under
the Indenture hereinafter referred to), for value received,
hereby promises to pay to______________________________, the
principal sum of _______________________________________________
($______________) on May 16, 2003 (such date is hereinafter
referred to as the "Maturity Date"), and to pay interest on said
principal sum from March 23, 1998, 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,
quarterly (subject to deferral as set forth herein) in arrears on
February 16, May 16, August 16 and November 16 of each year,
commencing on May 16, 1998, initially at the rate of 6.22% per
annum until May 15, 2001, and at the Reset Rate thereafter until
the principal hereof shall have become due and payable, and on
any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of
interest at the rate of 6.22% until May 15, 2001, and at the
Reset Date thereafter, compounded quarterly. The interest rate
will be reset on the third business day preceding May 16, 2001 to
the Reset Rate (as determined by the Reset Agent). The amount of
interest payable on any Interest Payment Date shall be computed
on the basis of a 360-day year consisting of twelve 30-day
months. 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 that
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,
be paid to the person in whose name this Debenture (or one or
more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date
for such interest installment which in the case of a Global
Debenture shall be the close of business on the business day next
preceding such Interest Payment Date; provided, however, if
pursuant to the terms of the Indenture the Debentures are no
longer represented by a Global Debenture, the Company may select
such regular record date for such interest installment which
shall be more than one Business Day but less than 60 Business
Days prior to an Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such
regular record date and may be paid to the Person in whose name
this Debenture (or one or more Predecessor Securities) 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 shall 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 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 premium,
if any) and the interest on this Debenture shall be payable at
the office or agency of the Trustee maintained for that purpose
in any coin or currency of the United States of America that at
the 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 Holders at such address as shall appear in the
Security Register or by wire transfer to an account appropriately
designated by the Holders entitled thereto. Notwithstanding the
foregoing, so long as the Holder of this Debenture is the
Institutional Trustee or the Collateral Agent, the payment of the
principal of (and premium, if any) and interest on this Debenture
will be made at such place and to such account as may be
designated in writing by the Institutional Trustee or the
Collateral Agent.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, senior and unsecured and will
rank in right of payment on parity with all other senior
unsecured obligations of the Company.
This Debenture shall not be entitled to any benefit under
the Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of
the Trustee.
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.
Dated: Xxxxx 00, 0000
XXXXXXXXX-XXXX COMPANY
By: __________________________
Name:
Title:
By: ____________________
Name:
Title:
Attest:
By: _________________________________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
Dated ______________________________________________________
The Bank of New York
as Trustee
By ________________________________________________________
Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Securities
of the Company (herein sometimes referred to as the
"Securities"), specified in the Indenture, all issued or to be
issued in one or more series under and pursuant to an Indenture
dated as of March 23, 1998 (the "Base Indenture"), duly executed
and delivered between the Company and The Bank of New York, as
Trustee (the "Trustee") (as supplemented by a First Supplemental
Indenture, dated March 23, 1998), (the Base Indenture as so
supplemented, 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 Securities. By the terms of the Indenture,
the Securities are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as
provided in the Indenture. This series of Securities is limited
in aggregate principal amount as specified in said First
Supplemental Indenture.
If a Tax Event shall occur and be continuing, the Company may,
at its option, redeem Debentures in whole (but not in part) at
any time at a Redemption Price per Debenture equal to the
Redemption Amount plus accrued and unpaid interest thereon,
including Compounded Interest and expenses and taxes of the Trust
(each as defined herein), if any, to the Tax Event Redemption
Date. The Redemption Price shall be paid to each Holder of the
Debenture by the Company, no later than 12:00 noon, New York City
time, on the Tax Event Redemption Date, by check or wire transfer
in immediately available funds, at such place and to such account
as may be designated by each such Holder.
The Debentures are not entitled to the benefit of any sinking
fund.
If a Failed Remarketing (as described in Section 5.4(b) of the
Purchase Contract Agreement and incorporated herein by reference)
has occurred, each holder of Securities who holds such Securities
on the day immediately following The Purchase Contract Settlement
Date, shall, upon at least three Business Days' prior notice,
have the right (the "Put Option") on the Business Day immediately
following May 16, 2001, to require the Trust to distribute their
pro rata share of Debentures to the Exchange Agent and to require
the Exchange Agent to put such Debentures, on behalf of such
holders on June 1, 2001 (the "Put Option Exercise Date") at a
repayment price of $25 per Security plus an amount equal to the
accrued and unpaid Distributions (including deferred
distributions, if any) thereon to the date of payment (the
"Debenture Repayment Price").
In order for the Debentures to be so repurchased, the Company
must receive, on or prior to 5:00 p.m. New York City Time on the
third Business Day immediately preceding the Put Option Exercise
Date, at the principal executive offices of Xxxxxxxxx-Xxxx
Company in Woodcliff Lake, New Jersey, the Debentures to be
repurchased with the form entitled "Option to Elect Repayment" on
the reverse of or otherwise accompanying such Debentures duly
completed. Any such notice received by the Trustee shall be
irrevocable. All questions as to the validity, eligibility
(including time of receipt) and acceptance of the Debentures for
repayment shall be determined by the Company, whose determination
shall be final and binding. The payment of the Debenture
Repayment Price in respect of such Debentures shall be made,
either through the Trustee or the Company acting as Paying Agent,
no later than 12:00 noon, New York City time, on the Put Option
Exercise Date.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the
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 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 the
Indenture, to execute supplemental indentures for the purpose of,
among other things, adding any provisions to or changing or
eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying the rights of the Holders
of the Debentures; provided, however, that, among other things,
no such supplemental indenture shall (i) reduce the principal
amount thereof, or reduce the rate or extend the time of payment
of interest thereon (subject to the Company's right to defer such
payments in the manner set forth herein), 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 then outstanding
and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal
amount of the Securities of any series at the time outstanding
affected thereby, on behalf of all of the Holders of the
Debentures of such series, to waive a Default or Event of Default
with respect to such series, and its consequences, except a
Default or Event of Default in the payment of the principal of or
premium, if any, or interest on any of the Securities 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 for 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.
No reference herein to the Indenture 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 and 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 Debenture, the Company shall have the right at
any time during the term of the Debentures from time to time to
extend the interest payment period of such Debentures for a
period not extending, in the aggregate, beyond the Maturity Date
of the Debentures (an "Extended Interest Payment Period"). At
the end of an Extended Interest Payment Period, the Company shall
pay all interest then accrued and unpaid (together with the
interest thereon at the rate of 6.22% until May 15, 2001 and at
the Reset Rate thereafter to the extent that payment of such
interest is enforceable under applicable law). In the event that
the Company exercises this right, then (a) the Company shall not
declare or pay dividends or make any distribution with respect
to, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock (other than (i)
purchases or acquisitions of capital stock of the Company in
connection with the satisfaction by the Company of its
obligations under any employee benefit plans or the satisfaction
by the Company of its obligations pursuant to any contract or
security outstanding on the date of such event requiring the
Company to purchase capital stock of the Company, (ii) as a
result of a reclassification of the Company's capital stock or
the exchange or conversion of one class or series of the
Company's capital stock for another class or series of the
Company's capital stock, (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to
the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (iv) dividends or
distributions in capital stock of the Company (or rights to
acquire capital stock) or repurchases or redemptions of capital
stock solely from the issuance or exchange of capital stock or
(v) redemptions or purchases of any rights outstanding under a
shareholder rights plan or the declaration thereunder of a
dividend of rights in the future), (b) the Company shall not make
any payment of interest, principal or premium, if any, or repay,
repurchase or redeem any debt securities issued by the Company
that rank junior to the Debentures, and (c) the Company shall not
make any guarantee payments with respect to the foregoing (other
than payments pursuant to the Guarantee). Prior to the
termination of any such Extended Interest Payment Period, the
Company may further extend the interest payment period; provided,
that such Extended Interest Payment Period, together with all
such previous and further extensions thereof, may not extend
beyond the Maturity Date of the Debenture. At the termination of
any such Extended Interest Payment Period and upon the payment of
all accrued and unpaid interest and any additional amount then
due, the Company may commence a new Extended Interest Payment
Period, subject to the above requirements.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by
the registered Holder hereof on the Security Register of the
Company, upon surrender of this Debenture for registration of
transfer at the office or agency of the Trustee in The City of
New York and State of New York accompanied by a written
instrument or instruments of transfer in form satisfactory to
the Company or the Trustee duly executed by the registered Holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new Debentures of authorized denominations and for
the same aggregate principal amount and series 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 the
Security 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
Security Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest
due hereon and for all other purposes, and neither the Company
nor the Trustee nor any Paying Agent nor any Security Registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, shareholder, officer or
director, past, present or future, as such, of the Company or of
any 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, all such liability
being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
The Indenture imposes certain limitations on the ability of the
Company to, among other things, merge or consolidate with any
other Person or sell, assign, transfer or lease all or
substantially all of its properties or assets. All such covenants
and limitations are subject to a number of important
qualifications and exceptions. The Company must report
periodically to the Trustee on compliance with the covenants in
the Indenture.
The Debentures of this series are issuable only in registered
form without coupons in denominations of $25 and any integral
multiple thereof. This Global Debenture is exchangeable for
Debentures in definitive form only under certain limited
circumstances set forth in the Indenture. As provided in the
Indenture and subject to certain limitations therein set forth,
Debentures of this series so issued are exchangeable for a like
aggregate principal amount of Debentures of this series of a
different authorized denomination, as requested by the Holder
surrendering the same.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Company to repay $_____ principal amount of the within
Debenture, pursuant to its terms, on the "Put Option Exercise
Date," together with any interest thereon accrued but unpaid to
the date of repayment, to the undersigned at:
(Please print or type name and address of the undersigned)
and to issue to the undersigned, pursuant to the terms of the
Debenture, a new Debenture or Debentures representing the
remaining aggregate principal amount of this Debenture.
For this Option to Elect Repayment to be effective, this
Debenture with the Option to Elect Repayment duly completed must
be received by the Company at Xxxxxxxxx-Xxxx Company, Attn:
Corporate Secretary, 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxxx Xxxx, Xxx
Xxxxxx 00000, no later than 5:00 p.m. on June 1, 2001.
Dated: Signature:_______________________________
Signature Guarantee:_______________________________
Note: The signature to this Option to Elect Repayment must
correspond with the name as written upon the face of the within
Debenture without alternation or enlargement or any change
whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements include membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
----------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Debenture to:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
__________________________________________________________
(Insert assignee's social security or tax identification number)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
__________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
____________________________________________________________
agent to transfer this Debenture on the books of the Trust. The
agent may substitute another to act for him or her.
Date: ____________________________________
Signature: _____________________________
Signature Guarantee: ___________________
(Sign exactly as your name appears on the other side of this Xxx
enture)
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements include membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION VIII.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $414,948,475
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
deliver said Debentures to or upon the written order of the
Company, signed by its Chairman, its Vice Chairman, its
President, or any Vice President and its Treasurer or an
Assistant Treasurer, without any further action by the Company.
The Company shall file with the Trustee promptly at the end
of each calendar year (i) a written notice specifying the amount
of original issue discount (including daily rates and accrual
periods) accrued on Outstanding Securities as of the end of the
year and (ii) such other specific information relating to such
original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE IX
MISCELLANEOUS
SECTION IX.1. Ratification of Indenture.
The Indenture as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this
First Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein
provided.
SECTION IX.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and
not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as
to the validity or sufficiency of this First Supplemental
Indenture.
SECTION IX.3. Governing Law.
This First Supplemental Indenture and each Debenture shall
be deemed to be a contract made under the internal laws of the
State of New York, and for all purposes shall be construed in
accordance with the laws of said State.
SECTION IX.4. Separability.
In case any one or more of the provisions contained in this
First Supplemental Indenture or in the Debentures shall for any
reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall
not affect any other provisions of this First Supplemental
Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION IX.5. Counterparts.
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.
SECTION IX.6. Guarantee and Declaration
The Guarantee and the Declaration shall be deemed to be
specifically described in this First Supplemental Indenture for
purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
ARTICLE X
REMARKETING
SECTION X.1. Effectiveness of this Article.
This Article Ten shall only become effective upon a
Dissolution Event which occurs prior to the Remarketing of the
Capital Securities pursuant to this Agreement. Until such
Dissolution Event, this Article Ten shall have no effect.
SECTION X.2. Remarketing Procedures.
(a) The Company shall request, not later than 15 nor
more than 30 calendar days prior to the Remarketing Date that the
Depositary notify the Holders of the Debentures and the holders
of FELINE PRIDES of the Remarketing and of the procedures that
must be followed if a Holder of Debentures wishes to exercise
such Holder's rights with respect to the Put Option if there is a
Failed Remarketing.
(b) Not later than 5:00 P.M., New York City time, on
the fifth Business Day immediately preceding the Purchase
Contract Settlement Date, each Holder of the Debentures may elect
to have Debentures held by such Holder remarketed. Under Section
5.4 of the Purchase Contract Agreement, Holders of Income PRIDES
that do not give notice of their intention to make a Cash
Settlement of their related Purchase Contracts in the manner
specified in such Section shall be deemed to have consented to
the tender for purchase of the Debentures comprising a component
of such Income PRIDES. Holders of Debentures that are not a
component of Income PRIDES shall give notice of their election to
have such Securities remarketed to the Custodial Agent pursuant
to the Pledge Agreement. Any such notice shall be irrevocable
after 5:00 P.M., New York City time, on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date and
may not be conditioned upon the level at which the Reset Rate is
established. Promptly after 5:30 P.M., New York City time, on
such fifth Business Day, the Trustee, based on the notices
received by it prior to such time (including notices from the
Purchase Contract Agent as to Purchase Contracts as to which Cash
Settlement has been elected), shall notify the Trust, the Company
and the Remarketing Agent of the number of Debentures to be
tendered for purchase.
(c) If any Holder of Income PRIDES does not give a
notice of intention to make a Cash Settlement or gives a notice
of election to tender Debentures as described in Section 10.2(b),
the Debentures of such Holder shall be deemed tendered,
notwithstanding any failure by such Holder to deliver or properly
deliver such Debentures to the Remarketing Agent for purchase.
(d) The right of each Holder to have Debentures
tendered for purchase shall be limited to the extent that (i) the
Remarketing Agent conducts a remarketing pursuant to the terms of
the Remarketing Agreement, (ii) Debentures tendered have not been
called for redemption, (iii) the Remarketing Agent is able to
find a purchaser or purchasers for tendered Debentures and (iv)
such purchaser or purchasers deliver the purchase price therefor
to the Remarketing Agent.
(e) On the Remarketing Date, the Remarketing Agent
shall use commercially reasonable efforts to remarket, at a price
equal to 100% of the aggregate principal amount thereof,
Debentures tendered or deemed tendered for purchase.
(f) If none of the Holders elect to have Debentures
held by them remarketed, the Reset Rate shall be the rate
determined by the Remarketing Agent, in its sole discretion, as
the rate that would have been established had a remarketing been
held on the Remarketing Date.
(g) If the Remarketing Agent has determined that it
will be able to remarket all Debentures tendered or deemed
tendered for purchase at a price of at least 100% of the
aggregate principal amount thereof prior to 4:00 P.M., New York
City time, on the Remarketing Date, the Remarketing Agent shall
determine the Reset Rate, which shall be the rate per annum
(rounded to the nearest one-thousandth (0.001) of one percent per
annum) which the Remarketing Agent determines, in its sole
judgment, to be the lowest rate per annum that will enable it to
remarket all Debentures tendered or deemed tendered for
remarketing.
(h) If, by 4:00 P.M., New York City time, on the
Remarketing Date, the Remarketing Agent is unable to remarket all
Debentures tendered or deemed tendered for purchase, a Failed
Remarketing shall be deemed to have occurred and the Remarketing
Agent shall so advise by telephone the Clearing Agency, the
Trustee, the Company and the Collateral Agent.
(i) By approximately 4:30 P.M., New York City time, on
the Remarketing Date, provided that there has not been a Failed
Remarketing, the Remarketing Agent shall advise, by telephone (i)
the Clearing Agency, the Trustee, the Company and the Collateral
Agent of the Reset Rate determined in the Remarketing and the
number of Debentures sold in such remarketing, (ii) each
purchaser (or the Depositary Participant thereof) of the Reset
Rate and the number of Debentures such purchaser is to purchase
and (iii) each purchaser to give instructions to its Clearing
Agency Participant to pay the purchase price on the Purchase
Contract Settlement Date in same day funds against delivery of
the Debentures purchased through the facilities of the Clearing
Agency.
(j) In accordance with the Clearing Agency's normal
procedures, on the Purchase Contract Settlement Date, the
transactions described above with respect to each Debenture
tendered for purchase and sold in the remarketing shall be
executed through the Clearing Agency, and the accounts of the
respective Clearing Agency, Participants shall be debited and
credited and such Debentures delivered by book entry as necessary
to effect purchases and sales of such Debentures. The Clearing
Agency shall make payment in accordance with its normal
procedures.
(k) If any holder selling Debentures in the
remarketing fails to deliver such Debentures, the Participant of
such selling holder and of any other person that was to have
purchased Debentures in the remarketing may deliver to any such
other person a number of Debentures that is less than the number
of Debentures that otherwise was to be purchased by such person.
In such event, the number of Debentures to be so delivered shall
be determined by such Clearing Agency Participant, and delivery
of such lesser number of Debentures shall constitute good
delivery.
(l) The Remarketing Agent is not obligated to purchase
any Debentures that would otherwise remain unsold in a
remarketing. Neither the Trust, any Trustee, the Company nor the
Remarketing Agent shall be obligated in any case to provide funds
to make payment upon tender of Debentures for remarketing.
(m) The tender and settlement procedures set in this
Section 10.02, including provisions for payment by purchasers of
Securities in the Remarketing, shall be subject to modification,
notwithstanding any provision to the contrary set forth herein,
to the extent required by the Clearing Agency or if the book-
entry system is no longer available for the Debentures at the
time of the remarketing, to facilitate the tendering and
remarketing of Debentures in certificated form. In addition, the
Remarketing Agent may, notwithstanding any provision to the
contrary set forth herein, modify the settlement procedures set
forth herein in order to facilitate the settlement process.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed by their
respective officers thereunto duly authorized, on the date or
dates indicated in the acknowledgments and as of the day and year
first above written.
XXXXXXXXX-XXXX COMPANY,
as Issuer
By:________________________
Name:
Title:
By: _______________________
Name:
Title:
THE BANK OF NEW YORK
___________________________
____________________
as Trustee
By: _______________________
Name:
Title:
