EXHIBIT 4.2
Conformed Copy
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XXXXXX XXXXXX, INC.
ISSUER
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 6, 2002
TO INDENTURE DATED AS OF AUGUST 27, 2002
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$250,000,000 6.50% SENIOR NOTES DUE 2012
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FIRST SUPPLEMENTAL INDENTURE, dated as of December 6, 2002 (the
"Supplemental Indenture"), to the Indenture, dated as of August 27, 2002 (the
"Original Indenture" and, as so amended and supplemented by this Supplemental
Indenture, the "Indenture"), between XXXXXX XXXXXX, INC. a Kansas corporation
(the "Company"), and WACHOVIA BANK, NATIONAL ASSOCIATION, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, pursuant to the Original Indenture, the Company established
and issued a series of its Securities (as defined in the Indenture) designated
as its 6.50% Senior Notes due 2012 (the "2012 Securities") in the initial
aggregate principal amount of $750,000,000;
WHEREAS, Sections 301 and 901 of the Indenture provide that the Company
may, so long as no Event of Default has occurred and is continuing, reopen the
series represented by the 2012 Securities to issue additional Securities of such
series, which shall form a single series with the other 2012 Securities and
shall have the same terms, without consent of any Holder;
WHEREAS, the Company represents that no Event of Default has occurred
and is continuing;
WHEREAS, the Company desires to reopen such series and issue
$250,000,000 aggregate principal amount of additional 2012 Securities which will
be part of the same series as the 2012 Securities, have the same CUSIP number
and have the same terms as the 2012 Securities;
WHEREAS, the conditions set forth in the Original Indenture for the
execution and delivery of this Supplemental Indenture have been complied with;
and
WHEREAS, all things necessary to make this Supplemental Indenture a
valid agreement of the Company and the Trustee, in accordance with its terms,
and a valid amendment of, and supplement to, the Original Indenture have been
done.
NOW THEREFORE:
Pursuant to Sections 301 and 901 of the Indenture, the series of 2012
Securities established by the Original Indenture is hereby reopened and there is
hereby authorized for issuance, authentication and delivery $250,000,000
aggregate principal amount of additional 2012 Securities (the "Additional 2012
Securities") of the same series as the 2012 Securities initially issued under
the Original Indenture, and in consideration of the premises and the purchase
and acceptance of the Additional 2012 Securities by the Holders thereof, the
Company mutually covenants and agrees with the Trustee, for the equal and
proportionate benefit of all Holders of the 2012 Securities, that the Original
Indenture is hereby supplemented and amended, to the extent and for the purposes
expressed herein, as follows:
ARTICLE ONE
AMENDMENTS TO THE ORIGINAL INDENTURE
Section 1.1 Amendments to Original Indenture. The Original Indenture is
hereby amended and supplemented as follows:
(a) The series of 2012 Securities established by the Original Indenture
is hereby reopened for the issuance of Additional 2012 Securities in an
aggregate principal amount of $250,000,000, which shall form a single series
with the 2012 Securities, with the same CUSIP number, and shall have the same
terms as the 2012 Securities, except that the Additional 2012 Securities will be
issued on December 6, 2002. Interest on the Additional 2012 Securities shall
accrue from August 27, 2002. The forms of face and reverse of the 2012
Securities, including the Additional 2012 Securities, are set forth in Sections
202 and 203, respectively, of the Original Indenture, and such forms with
respect to the Additional 2012 Securities may contain such changes as may be
appropriate to reflect the issuance of the Additional 2012 Securities and the
amendment of the Original Indenture by this Supplemental Indenture.
(b) All references to the 2012 Securities in the Original Indenture and
the form of face and reverse of the 2012 Security set forth in the Original
Indenture shall be amended, supplemented and deemed to include the Additional
2012 Securities issued hereunder.
(c) Section 101 of the Original Indenture is hereby amended by the
deletion of the definition of "Registration Rights Agreement" and the
substitution in the lieu thereof of the following:
"Registration Rights Agreement" means, as applicable, the
Registration Rights Agreement, dated as of August 27, 2002, between the
Company and Xxxxxxx Xxxxx Xxxxxx Inc., X.X. Xxxxxx Securities Inc.,
Wachovia Securities, Inc., Commerzbank Capital Markets Corp., Scotia
Capital (USA) Inc., BMO Xxxxxxx Xxxxx Corp., RBC Dominion Securities
Corporation, SunTrust Capital Markets, Inc., Banc One Capital Markets,
Inc. and Credit Lyonnais Securities (USA) Inc., as the same shall be
amended from time to time, or the Registration Rights Agreement, dated
as of December 6, 2002, between the Company, Wachovia Securities, Inc.
and Barclays Capital Inc., as the same shall be amended from time to
time.
(d) The Additional 2012 Securities shall be subject to, and be entitled
to the benefits of the Original Indenture, as amended hereby.
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ARTICLE TWO
MISCELLANEOUS
Section 2.1 Defined Terms. Unless otherwise provided in this
Supplemental Indenture, all defined terms used in this Supplemental Indenture
shall have the meanings assigned to them in the Original Indenture.
Section 2.2 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Supplemental
Indenture, the latter provision shall control. If any provision of this
Supplemental Indenture modifies or excludes any provision of the Trust Indenture
Act that may be so modified or excluded, the latter provision shall be deemed to
apply to this Supplemental Indenture as so modified or excluded, as the case may
be.
Section 2.3 Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Section 2.4 Successors and Assigns. All covenants and agreements in this
Supplemental Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
Section 2.5 Separability Clause. In case any provision in this
Supplemental Indenture or in the 2012 Securities (including the Additional 2012
Securities) 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 2.6 Benefits of Supplemental Indenture. Nothing in this
Supplemental Indenture or in the 2012 Securities (including the Additional 2012
Securities), express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and Holders of 2012 Securities,
any benefit or any legal or equitable right, remedy or claim under this
Supplemental Indenture.
Section 2.7 Governing Law. This Supplemental Indenture and the 2012
Securities (including the Additional 2012 Securities) shall be governed by and
construed in accordance with the law of the State of New York.
Section 2.8 Acceptance by Trustee. The Trustee accepts the amendments
to the Original Indenture effected by this Supplemental Indenture and agrees to
execute the trusts created by the Indenture, but only upon the terms and
conditions set forth in the Indenture. Without limiting the generality of the
foregoing, the Trustee assumes no responsibility for the correctness of the
recitals contained herein, which shall be taken as the statements of the
Company, and except as provided in the Indenture the Trustee shall not be
responsible or accountable in any way whatsoever for or with respect to the
validity or execution or sufficiency of this Supplemental Indenture and the
Trustee makes no representation with respect thereto.
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Section 2.9 Counterparts. This Supplemental Indenture may be executed
with counterpart signature pages or in any number of counterparts, each of which
so executed shall be an original, but such counterparts shall together
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the day and year first above written.
XXXXXX XXXXXX, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Vice President, General Counsel and
Secretary
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ R. Xxxxxxx Xxxxxx
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Name: R. Xxxxxxx Xxxxxx
Title: Vice President
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