EXHIBIT 4-q
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XXXXXXX'X, INC.
TO
THE CHASE MANHATTAN BANK
Trustee
__________
THIRD SUPPLEMENTAL
INDENTURE
Dated as of ______________, 1998
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THIRD SUPPLEMENTAL INDENTURE, dated as of _____________, 1998 between
Xxxxxxx'x, Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 and The Chase Manhattan Bank
(formerly known as Chemical Bank), a banking corporation duly organized and
existing under the laws of the State of New York, as trustee under the Indenture
referred to below (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the Trustee a
certain indenture, dated as of May 15, 1988 (as amended and supplemental through
the date hereof, the "Indenture"), pursuant to which one or more series of
unsecured debentures, notes or other evidences of indebtedness of the Company
(herein called the "Securities") may be issued from time to time. All terms
used in this Third Supplemental Indenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture;
WHEREAS, Section 901(9) of the Indenture provides that without the consent
of any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may entered into an indenture
supplemental to the Indenture to cure any ambiguity, to correct or supplement
any provision therein which may be inconsistent with any other provision
therein, or to make any other provisions with respect to matters or questions
arising under this Indenture; provided, such action shall not adversely affect
the interest of the holders of Securities of any series in any material respect;
WHEREAS, the Company pursuant to the foregoing authority, proposes in and
by this Third Supplemental Indenture to amend the Indenture in certain respects
with respect to the Securities of any series created on or after the date
hereof; and
WHEREAS, all thing necessary to make this Third Supplemental Indenture a
valid agreement of the Company and the Trustee and a valid amendment of and
supplement to the Indenture have been done.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
with respect to Securities of any series issued after the date hereof as
follows:
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ARTICLE ONE
AMENDMENTS TO THE INDENTURE
SECTION 1.1 Amendments to Section 501. Section 501(5) is amended to read
as follows:
(5)(a) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any of its Subsidiaries
(including a default with respect to Securities of any series other than that
series) or under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any indebtedness for money
borrowed by the Company or any of its Subsidiaries (including this Indenture) in
an aggregate principal amount exceeding $20,000,000, whether such indebtedness
now exists or shall hereafter be created, which default shall have resulted in
such indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
acceleration having been rescinded or annulled, within a period of 10 days after
there shall have been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default and requiring the Company to cause such acceleration to
be rescinded or annulled and stating that such notice is a "Notice of Default"
hereunder; or (b) the Company or any of its Subsidiaries fails to pay any
indebtedness under any bond, debenture, note or other evidence of indebtedness
for money borrowed by the Company or any of its Subsidiaries (including a
default with respect to Securities of any series other than that series) or
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money borrowed
by the Company or any of its Subsidiaries (including this Indenture) in an
aggregate principal amount exceeding $20,000,000, whether such indebtedness now
exists or shall hereafter be created, at the later of final maturity or upon
expiration of any applicable period of grace with respect to such principal
amount, and such failure to pay shall not have been cured by the Company or any
of its Subsidiaries within 30 days after such failure; provided, however, that,
subject to the provisions of Sections 601 and 602, the Trustee shall not be
deemed to have knowledge of such default or failure unless either (A) a
Responsible Officer of the Trustee in its Corporate Trust Office shall have
actual knowledge of such default or failure or (B) the Trustee shall have
received written notice thereof at its Corporate Trust Office from the Company,
from any Holder, from the holder of any such indebtedness or from the trustee
under any such mortgage, indenture or other instrument.
SECTION 1.2 Amendments to Section 502. Section 502 is amended to read as
follows:
If an Event of Default (other than an Event of Default specified in Section
501(6) or Section 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or if any of the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof) of
all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders),
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and upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series had been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
If an Event of Default specified in Section 501(6) or 501(7) occurs, the
principal amount (or, if any of the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities as
may be specified in the terms thereof) of all Securities then outstanding shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
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ARTICLE TWO
MISCELLANEOUS
SECTION 2.1 Incorporation of Indenture. All the provisions of this Third
Supplemental Indenture shall be deemed to be incorporated in, and made a part
of, the Indenture; and the Indenture, as supplemented and amended by this Third
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
SECTION 2.2 Application of Third Supplemental Indenture. The provisions
and benefit of this Third Supplemental Indenture shall not be effective with
respect to Securities Outstanding prior to the execution hereof.
SECTION 2.3 Headings. The headings of the Articles and Sections of this
Third Supplemental Indenture are inserted for convenience of reference and shall
not be deemed to be a part thereof.
SECTION 2.4 Counterparts. This Third Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 2.5 Conflict of Trust Indenture Act. If any provision hereof
limits, qualifies, or conflicts with a provision of the Trust Indenture Act that
is required under said Act to be a part of and govern this Third Supplemental
Indenture, such required provision shall control.
SECTION 2.6 Successors and Assigns. All covenants and agreements in this
Third Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 2.7 Separability Clause. In case any provision in this Third
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 2.8 Benefits of Third Supplemental Indenture. Nothing in this
Third Supplemental Indenture, express or implied, shall give to any person,
other than the parties hereto and their successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim under this Third
Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have cause this Third Supp lemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
XXXXXXX'X, INC.
By: ______________________________________
Title:
[CORPORATE SEAL]
ATTEST:
___________________________
Title:
THE CHASE MANHATTAN BANK, AS TRUSTEE
By: ______________________________________
Title:
[CORPORATE SEAL]
ATTEST:
___________________________
Title:
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XXXXX XX XXXXXXXX )
)ss
COUNTY OF PULASKI )
On the ____ day of ___________, 1998, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is __________________ of XXXXXXX'X, INC., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his named thereto by like authority.
___________________________________
Notary Public
[NOTARY SEAL]
My Commission Expires:
_____________________
STATE OF NEW YORK )
)ss
COUNTY OF NEW YORK )
On the ____ day of ___________, 1998, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is __________________ of THE CHASE MANHATTAN BANK, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his named thereto by like
authority.
___________________________________
Notary Public
[NOTARY SEAL]
My Commission Expires:
_____________________
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