EXHIBIT 4.3
THE XXXXXXX XXXXXX CORPORATION, ISSUER
AND
THE CHASE MANHATTAN BANK, TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF JUNE __, 1999
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FIRST SUPPLEMENT TO THE SENIOR INDENTURE
DATED AS OF JULY 15, 1993
FIRST SUPPLEMENTAL INDENTURE, dated as of June __, 1999, between THE
XXXXXXX XXXXXX CORPORATION, a Delaware corporation (the "Issuer"), and THE CHASE
MANHATTAN BANK (formerly known as Chemical Bank), as Trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee that certain Senior Indenture dated as of July 15, 1993 (the "Original
Indenture"); and
WHEREAS, the Company desires to amend the Original Indenture (the
"Proposed amendment") in a way that does not adversely affect the legal rights
under the Original Indenture of any Holder of the Notes (the "Holders"); and
WHEREAS, Section 8.1 of the Original Indenture provides that the Company
and the Trustee may amend the Original Indenture without the consent of any
Holder to, among other things, make any change that does not adversely affect
the rights of any Holder under the Original indenture; and
WHEREAS, the Company desires and has requested the Trustee to join with
it in the execution and delivery of this Supplemental Indenture for the purpose
of amending the original Indenture to affect the Proposed Amendment; and
WHEREAS, the execution and delivery of this Supplemental Indenture have
been duly authorized and approved by a resolution of the Issuer's Board of
Directors.
NOW, THEREFORE, in consideration of the foregoing premises, and for the
equal and proportionate benefit of all Holders of the Notes, the Original
Indenture is hereby amended, effective upon execution hereof by the Trustee as
follows:
ARTICLE ONE
SECTION 1.01. AMENDMENTS
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(a) Section 1.1 of the Original Indenture is hereby amended by replacing
the definition of "Issuer Order" with the following:
"Issuer Order" means a written statement, request or order of the
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Issuer signed in its name by the chairman or vice chairman of the Board of
Directors, the
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chief executive officer ("CEO") (or any co-CEO if the CEO title is allocated to
more than one person), the president, the chief financial officer, the executive
vice president-finance or the treasurer of the Issuer."
(b) Section 1.1 of the Original Indenture is hereby amended by replacing
the definition of "Officer's Certificate" with the following:
"Officer's Certificate" means a certificate signed by the chairman or
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vice chairman of the Board of Directors, the CEO (or any co-CEO if the CEO title
is allocated to more than one person), the president, the chief financial
officer, the executive vice president-finance or the treasurer of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 11.5."
(c) Section 1.1 of the Original Indenture is hereby amended by replacing
the definition of "Person" with the following:
"Person" means any individual, corporation, partnership, joint venture,
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association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof."
(d) Section 2.5 of the Original Indenture is hereby amended by replacing
the first sentence thereof with the following:
"The Securities shall be signed on behalf of the Issuer by the chairman
or vice chairman of its Board of Directors or its CEO (or any co-CEO if the CEO
title is allocated to more than one person), president, chief financial officer,
executive vice president-finance or treasurer, under its corporate seal which
may, but need not, be attested."
ARTICLE TWO
MISCELLANEOUS PROVISIONS
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SECTION 2.01. Definitions.
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For all purposes of this Supplemental Indenture, except as otherwise
defined or unless the context otherwise requires, capitalized terms used in this
Supplemental Indenture and defined in the Original Indenture have the meaning
specified in the Original Indenture.
SECTION 2.02. Enforceability.
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Except specifically amended and supplemented by this Supplemental
Indenture, the Original Indenture shall remain in full force and effect and is
hereby ratified and confirmed.
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SECTION 2.03. Governing Law.
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This Supplemental Indenture shall be governed by, and construed in
accordance with, the laws of the State of California but without giving effect
to applicable principles of conflicts of law to the extent that the application
of the law of another jurisdiction would be required thereby.
SECTION 2.04. No Adverse Interpretation of Other Agreements.
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This Supplemental Indenture may not be used to interpret another
indenture, loan or debt agreement of the Issuer or any of its Subsidiaries. Any
such indenture, loan or debt agreement may not be used to interpret this
Supplemental Indenture.
SECTION 2.05. Successors.
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All agreements of the Issuer in this Supplemental Indenture shall bind
its successors. All agreements of the Trustee in this Supplemental Indenture
shall bind its successors.
SECTION 2.06. Duplicate Originals.
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All parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
shall represent the same agreement.
SECTION 2.07. Severability.
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In case any one or more of the provisions in this Supplemental Indenture
shall be held invalid, illegal or unenforceable, in any respect for any reason,
the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions shall not in any way be affected or
impaired thereby, it being intended that all of the provisions hereof shall be
enforceable to the full extent permitted by law.
SECTION 2.08. Execution of Supplemental Indenture.
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This Supplemental Indenture is executed and shall be construed as an
indenture supplement to the Original Indenture and, as provided in the Original
Indenture, this Supplemental Indenture forms a part thereof.
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SECTION 2.09. Trustee.
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The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or
in respect of the recitals contained herein, all of which are made solely by the
Issuer.
IN WITNESS WHEREOF, the parties hereof have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
THE XXXXXXX XXXXXX
CORPORATION, as Issuer
By:
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Its:
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THE CHASE MANHATTAN BANK, as
Trustee
By:
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Its:
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