Exhibit 4(c)
FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated as of
September 19, 1997, between Fort Xxxxxx Corporation, a Delaware corporation
(the "Company"), and The Bank of New York, a New York banking corporation, as
Trustee (the "Trustee").
WITNESSETH:
WHEREAS, in accordance with Section 8.02 of the Indenture relating to the
9% Senior Subordinated Notes due 2006 of the Company (the "Securities"), dated
as of February 1, 1994, between the Company and the Trustee (the "Indenture"),
subject to Sections 5.04 and 5.07 of the Indenture, the Company, when
authorized by its Board of Directors (the "Board") (as evidenced by a Board
Resolution), and the Trustee may amend the Indenture and the Securities with
the written consent of the holders of a majority in principal amount of the
Securities then outstanding (the "Requisite Consents"); and
WHEREAS, the Company has obtained the Requisite Consents to amend the
Indenture as set forth below; and
WHEREAS the Board has, as evidenced by Board Resolution, authorized the
amendment of the Indenture pursuant to this Supplemental Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid
supplement to the terms of the Indenture have been done.
NOW, THEREFORE, the parties hereto agree as set forth below.
Section 1. AMENDMENT TO ARTICLE ONE. Section 1.01 of the Indenture is
hereby amended and restated to read in its entirety as follows:
SECTION 1.01. DEFINITIONS.
"Acquisition" is defined to mean the acquisition of the Common Stock of
the Company by FH Acquisition Corp. pursuant to a tender offer commenced on
July 1, 1988 and the subsequent merger of FH Acquisition Corp. with and into
the Company.
"Administrative Agent" is defined to mean the Bank Agent under the Bank
Credit Agreement or the 1993 Term Loan Agreement, or any successor thereto,
including the New Bank Credit Agreement.
"Affiliate" is defined to mean, as applied to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any Person, is
defined to mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise. For
purposes of this definition, no Bank Agent, Administrative Agent or Bank and
no affiliate of any of them shall be deemed to be an Affiliate of the Company.
"Agent" is defined to mean any Registrar, Paying Agent, authenticating
agent or co-Registrar.
"Bank Agent" is defined to mean Bankers Trust Company as agent for the
Banks pursuant to the Bank Credit Agreement or the 1993 Term Loan Agreement,
and any successor or successors thereto, including The Chase Manhattan Bank as
agent for the Banks pursuant to the New Bank Credit Agreement.
"Bank Credit Agreement" is defined to mean the Credit Agreement, dated as
of October 24, 1988, among the Company, the Banks party thereto and the Bank
Agents party thereto, together with the related documents thereto (including,
without limitation, any Guarantees and security documents), in each case, as
such agreements may be amended (including any amendment and restatement
thereof), supplemented, replaced or otherwise modified from time to time,
including any agreement extending the maturity of, refinancing or otherwise
restructuring (including, but not limited to, the inclusion of additional
borrowers or Guarantors thereunder that are Subsidiaries of the Company and
whose obligations are Guaranteed by the Company thereunder) all or any portion
of the Indebtedness under such agreements or any successor agreements,
including the New Bank Credit Agreement; provided that, with respect to any
agreement providing for the refinancing of Indebtedness under the Bank Credit
Agreement, such agreement shall be the Bank Credit Agreement under this
Indenture only if a notice to that effect is delivered to the Trustee; and
provided further that there shall be at any one time only one instrument,
together with any related documents (including, without limitation, any
Guarantees or security documents), that is the Bank Credit Agreement under
this Indenture.
"Banks" is defined to mean the lenders who are from time to time parties
to the Bank Credit Agreement or the 1993 Term Loan Agreement, including the
lenders who are from time to time parties to the New Bank Credit Agreement.
"Board of Directors" is defined to mean the Board of Directors of the
Company or any committee of such Board of Directors duly authorized to act
under this Indenture.
"Board Resolution" is defined to mean a copy of a resolution, certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" is defined to mean any day except a Saturday, Sunday or
other day on which commercial banks in The City of New York, or in the city of
the Corporate Trust Office of the Trustee, are authorized by law to close.
"Capital Stock" is defined to mean, with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's capital stock,
whether now outstanding or issued after the date of this Indenture, including,
without limitation, all Common Stock and Preferred Stock.
"Capitalized Lease" is defined to mean, as applied to any Person, any
lease of any property (whether real, personal or mixed) of which the
discounted present value of the rental obligations of such Person as lessee,
in conformity with GAAP, is required to be capitalized on the balance sheet of
such Person; and "Capitalized Lease Obligation" is defined to mean the rental
obligations, as aforesaid, under such lease.
"Commission" is defined to mean the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the TIA, then the body
performing such duties at such time.
"Common Stock" is defined to mean, with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's common stock,
whether now outstanding or issued after the date of this Indenture, including,
without limitation, all series and classes of such common stock.
"Company" is defined to mean the party named as such in this Indenture
until a successor replaces it pursuant to Article Four of this Indenture and
thereafter is defined to mean the successor.
"Corporate Trust Office" is defined to mean the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date of this
Indenture, located at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York
10286, Attention: Corporate Trust Trustee Administration.
"Currency Agreement" is defined to mean any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any of its Subsidiaries against fluctuations in
currency values to or under which the Company or any of its Subsidiaries is a
party or a beneficiary on the date of this Indenture or becomes a party or a
beneficiary thereafter.
"Default" is defined to mean any event that is, or after notice or
passage of time or both would be, an Event of Default.
"Designated Senior Indebtedness" is defined to mean (i) Indebtedness
under the Bank Credit Agreement, the 1993 Term Loan Agreement or the Senior
Secured Notes (including any agreement pursuant to which the Senior Secured
Notes were issued) and (ii) any other Indebtedness constituting Senior
Indebtedness that, at any date of determination, has an aggregate principal
amount of at least $100 million and is specifically designated by the Company
in the instrument creating or evidencing such Senior Indebtedness as
"Designated Senior Indebtedness"; provided that, at the time of such
designation, the aggregate outstanding amount (plus any unutilized
commitments) under the Bank Credit Agreement shall be $200 million or less.
"Event of Default" has the meaning provided in Section 5.01 of this
Indenture.
"Exchange Act" is defined to mean the Securities Exchange Act of 1934, as
amended.
"14-1/8% Debentures" is defined to mean the 14-1/8% Junior Subordinated
Discount Debentures Due 2004 of the Company.
"GAAP" is defined to mean generally accepted accounting principles in the
United States of America as in effect as of the date of this Indenture,
including, without limitation, those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as approved by a significant segment of the accounting profession. All
ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP, except that calculations made for purposes
of determining compliance with the terms of the covenants described below and
with other provisions of this Indenture shall be made without giving effect to
(i) the amortization of any expenses incurred in connection with the
Acquisition, the 1993 Refinancing or the Refinancing and (ii) except as
otherwise provided, the amortization of any amounts required or permitted by
Accounting Principles Board Opinion Nos. 16 and 17.
"Guarantee" is defined to mean any obligation, contingent or otherwise,
of any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreement
to keep-well, to purchase assets, goods, securities or services, to take-or-
pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for purposes of assuring in any other manner the obligee of
such Indebtedness or other obligation of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part); provided
that the term "Guarantee" shall not include endorsements for collection or
deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Holder" or "Securityholder" is defined to mean the registered holder of
any Security.
"Incur" is defined to mean, with respect to any Indebtedness, to incur,
create, issue, assume, Guarantee or otherwise become liable for or with
respect to or extend the maturity of, or become responsible for, the payment
of, contingently or otherwise, such Indebtedness; provided that neither the
accrual of interest (whether such interest is payable in cash or kind) nor the
accretion of original issue discount shall be considered an Incurrence of
Indebtedness.
"Indebtedness" is defined to mean, with respect to any Person at any date
of determination (without duplication), (i) all indebtedness of such Person
for borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto), (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services,
which purchase price is due more than six months after the date of placing
such property in service or taking delivery and title thereto or the
completion of such services, except Trade Payables, (v) all obligations of
such Person as lessee under Capitalized Leases, (vi) all Indebtedness of other
Persons secured by a Lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person; provided that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such asset at
such date of determination and (B) the amount of such Indebtedness of such
other Persons, (vii) all Indebtedness of other Persons Guaranteed by such
Person to the extent such Indebtedness is Guaranteed by such Person,
(viii) all obligations in respect of borrowed money under the Bank Credit
Agreement, the 1993 Term Loan Agreement, the Senior Secured Notes, the
Securities (including any agreements pursuant to which the Securities were
issued) and any Guarantees thereof and (ix) to the extent not otherwise
included in this definition, obligations under Currency Agreements and
Interest Rate Agreements. The amount of Indebtedness of any Person at any
date shall be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability, upon the occurrence
of the contingency giving rise to the obligation, of any contingent
obligations at such date; provided that the amount outstanding at any time of
any Indebtedness issued with original issue discount is the face amount of
such Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with
GAAP.
"Indenture" is defined to mean this Indenture as originally executed or
as it may be amended or supplemented from time to time by one or more
indentures supplemental to this Indenture entered into pursuant to the
applicable provisions of this Indenture.
"Interest Payment Date" is defined to mean each semiannual interest
payment date on February 1 and August 1 of each year, commencing August 1,
1994.
"Interest Rate Agreement" is defined to mean any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate
collar agreement, interest rate hedge agreement or other similar agreement or
arrangement designed to protect the Company or any of its Subsidiaries against
fluctuations in interest rates to or under which the Company or any of its
Subsidiaries is a party or a beneficiary on the date of this Indenture or
becomes a party or a beneficiary thereafter.
"Investment" is defined to mean any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of any Person or its
Subsidiaries) or other extension of credit or capital contribution to (by
means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, bonds, notes, debentures or other similar
instruments issued by any other Person.
"Lien" is defined to mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof, any sale with recourse against the seller or any Affiliate of the
seller).
"New Bank Credit Agreement" is defined to mean the Credit Agreement,
dated as of August 13, 1997, among Fort Xxxxx Corporation, the Subsidiaries of
Fort Xxxxx Corporation party thereto, the Banks party thereto and The Chase
Manhattan Bank, as Administrative Agent, together with the related documents
thereto (including, without limitation, any Guarantees and security
documents), in each case, as such agreements may be amended (including any
amendment and restatement thereof), supplemented, replaced or otherwise
modified from time to time, including any agreement extending the maturity of,
refinancing or otherwise restructuring (including, but not limited to, the
inclusion of additional borrowers or Guarantors thereunder that are
Subsidiaries of the Company and whose obligations are Guaranteed by the
Company thereunder) all or any portion of the Indebtedness under such
agreements or any successor agreements.
"9-1/4% Notes" is defined to mean the 9-1/4% Senior Notes Due 2001 of the
Company.
"1993 Refinancing" is defined to mean the issuance and sale of the
Company's 9-1/4% Notes and 10% Notes, the Incurrence of Indebtedness under the
1993 Term Loan Agreement, certain additional borrowings under the Company's
revolving credit facility, the redemption of the Company's 14-1/8% Junior
Subordinated Debentures Due 2004 and the prepayment of certain term
Indebtedness under the Bank Credit Agreement.
"1993 Term Loan Agreement" is defined to mean the Term Loan Agreement,
dated as of March 22, 1993, among the Company, the Banks party thereto and the
Bank Agents party thereto, together with the related documents thereto
(including, without limitation, any Guarantees and security documents), in
each case, as such agreements may be amended (including any amendment and
restatement thereof), supplemented, replaced or otherwise modified from time
to time, including any agreement extending the maturity of, refinancing or
otherwise restructuring (including, but not limited to, the inclusion of
additional borrowers or Guarantors thereunder that are Subsidiaries of the
Company and whose obligations are Guaranteed by the Company thereunder) all or
any portion of the Indebtedness under such agreements or any successor
agreements; provided that, with respect to any agreement providing for the
refinancing of Indebtedness under the 1993 Term Loan Agreement, such agreement
shall be the 1993 Term Loan Agreement under this Indenture only if a notice to
that effect is delivered to the Trustee; and provided further that there shall
be at any one time only one instrument, together with any related documents
(including, without limitation, any Guarantees or security documents), that is
the 1993 Term Loan Agreement under this Indenture.
"Officer" is defined to mean, with respect to the Company, the Chairman
of the Board, the President, any Vice President, the Chief Financial Officer,
the Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary.
"Officers' Certificate" is defined to mean a certificate signed by two
Officers. Each Officers' Certificate (other than certificates provided
pursuant to TIA Section 314(a)(4)) shall include the statements provided for
in TIA Section 314(e).
"Opinion of Counsel" is defined to mean a written opinion signed by legal
counsel who is acceptable to the Trustee. Such counsel may be an employee of
or counsel to the Company or the Trustee. Each such Opinion of Counsel shall
include the statements provided for in TIA Section 314(e).
"Pass Through Certificate Leases" is defined to mean the leases under
which the Company leases the Phase IV paper manufacturing facility, the
Phase IV power plant and certain paper manufacturing production equipment, all
located in Effingham County, Georgia.
"Pass Through Certificate Secured Notes" is defined to mean the secured
notes issued on a nonrecourse basis by the owner trustee in connection with
its acquisition of the Company's interest in the Phase IV paper manufacturing
facility, the Phase IV power plant and certain paper manufacturing production
equipment, all located in Effingham County, Georgia.
"Pass Through Certificates" is defined to mean the Pass Through
Certificates, Series 1991, representing fractional undivided interests in the
Fort Xxxxxx Corporation 1991 Pass Through Trust formed pursuant to a pass
through trust agreement by and between the Company and Wilmington Trust
Company, as trustee.
"Paying Agent" has the meaning provided in Section 2.03, except that, for
the purposes of Article Seven, the Paying Agent shall not be the Company or a
Subsidiary of the Company or an Affiliate of any of them. The term "Paying
Agent" includes any additional Paying Agent.
"Person" is defined to mean an individual, a corporation, a partnership,
an association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Preferred Stock" is defined to mean, with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's preferred or
preference stock, whether now outstanding or issued after the date of this
Indenture, including, without limitation, all series and classes of such
preferred or preference stock.
"Principal" of a debt security, including the Securities, is defined to
mean the principal amount due on the Stated Maturity as shown on such debt
security.
"Public Equity Offering" means an underwritten primary public offering of
equity securities of the Company pursuant to an effective registration
statement under the Securities Act.
A "Public Market" shall be deemed to have occurred once (x) a Public
Equity Offering has been consummated and (y) at least 15% of the total issued
and outstanding common stock of the Company has been distributed by means of
an effective registration statement under the Securities Act or sales pursuant
to Rule 144 under the Securities Act.
"Redeemable Stock" is defined to mean any class or series of Capital
Stock of any Person that by its terms or otherwise is (i) required to be
redeemed prior to the Stated Maturity of the Securities, (ii) redeemable at
the option of the holder of such class or series of Capital Stock at any time
prior to the Stated Maturity of the Securities or (iii) convertible into or
exchangeable for Capital Stock referred to in clause (i) or (ii) above or
Indebtedness having a scheduled maturity prior to the Stated Maturity of the
Securities; provided that any Capital Stock that would not constitute
Redeemable Stock but for provisions thereof giving holders thereof the right
to require the Company to repurchase or redeem such Capital Stock upon the
occurrence of an "asset sale" occurring prior to the Stated Maturity of the
Securities shall not constitute Redeemable Stock if the asset sale provisions
applicable to such Capital Stock are no more favorable to the holders of such
Capital Stock than the provisions contained in Section 3.09 of the Indenture
as in effect prior to the execution of this Supplemental Indenture ("Prior
Section 3.09") and such Capital Stock specifically provides that the Company
will not repurchase or redeem any such stock pursuant to such provisions prior
to the Company's repurchase of such Securities as are required to be
repurchased pursuant to the provisions of Prior Section 3.09.
"Redemption Date", when used with respect to any Security to be redeemed,
is defined to mean the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, is defined to mean the price at which such Security is to be
redeemed pursuant to this Indenture.
"Refinancing" is defined to mean the issuance and sale of the Securities
and the Senior Notes, the redemption of the 12-3/8% Notes, the redemption of a
portion of the 12-5/8% Debentures, the prepayment of certain term Indebtedness
under the Bank Credit Agreement and the repayment of certain revolving
Indebtedness under the Bank Credit Agreement, all as undertaken in connection
with the issuance and sale of the Securities.
"Registrar" has the meaning provided in Section 2.03 of this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date is defined to mean the January 15 or July 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, is defined
to mean the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, any assistant vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also is defined to mean, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" is defined to mean any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture.
"Securities Act" is defined to mean the Securities Act of 1993, as
amended.
"Security Register" has the meaning provided in Section 2.03 of this
Indenture.
"Senior Indebtedness" is defined to mean the following obligations of the
Company, whether outstanding on the date hereof or thereafter Incurred:
(i) all Indebtedness and other monetary obligations of the Company under the
Bank Credit Agreement, the 1993 Term Loan Agreement, any Interest Rate
Agreement or any Currency Agreement and the Company's Guarantee of any
Indebtedness or monetary obligation of any of its Subsidiaries under the Bank
Credit Agreement, the 1993 Term Loan Agreement, any Interest Rate Agreement or
any Currency Agreement, (ii) any principal of, premium, if any, and interest
on the Senior Secured Notes, the Senior Notes and the 9-1/4% Notes, (iii) all
other Indebtedness of the Company (other than the Securities), including
principal and interest on such Indebtedness, unless such Indebtedness, by its
terms or by the terms of any agreement or instrument pursuant to which such
Indebtedness is issued, is pari passu with, or subordinated in right of
payment to, the Securities and (iv) all fees, expenses and indemnities payable
in connection with the Bank Credit Agreement, the 1993 Term Loan Agreement or
the Senior Secured Notes (including any agreement pursuant to which the Senior
Secured Notes were issued) and, if applicable, Currency Agreements and
Interest Rate Agreements; provided that the term "Senior Indebtedness" shall
not include (a) the 12-3/8% Notes, the 12-5/8% Debentures, the 10% Notes or
the 14-1/8% Debentures or any amounts payable under the indentures relating
thereto, or amounts payable under the Pass Through Certificate Leases in
excess of the amount necessary to pay the outstanding Pass Through Certificate
Secured Notes (including accrued and unpaid interest) in full on the date of
payment, (b) any Indebtedness of the Company that, when Incurred and without
respect to any election under Section 1111(b) of the United States Bankruptcy
Code, was without recourse to the Company, (c) any Indebtedness of the Company
to a Subsidiary of the Company or to a joint venture in which the Company has
an interest, (d) any repurchase, redemption or other obligation in respect of
Redeemable Stock, (e) any Indebtedness to any employee of the Company or any
of its Subsidiaries, (f) any liability for federal, state, local or other
taxes owed or owing by the Company and (g) any Trade Payables. Senior
Indebtedness will also include interest accruing subsequent to events of
bankruptcy of the Company and its Subsidiaries at the rate provided for in the
document governing such Senior Indebtedness, whether or not such interest is
an allowed claim enforceable against the debtor in a bankruptcy case under
federal bankruptcy law.
"Senior Notes" is defined to mean the 8-1/4% Senior Notes Due 2002 of the
Company.
"Senior Secured Notes" is defined to mean the Company's Senior Secured
Notes due 1997 through 2000, issued in 1991 and having an aggregate principal
amount of $300 million.
"Senior Subordinated Obligations" is defined to mean any principal of,
premium, if any, and interest on the Securities payable pursuant to the terms
of the Securities or upon acceleration, including any amounts received upon
the exercise of rights of rescission or other rights of action (including
claims for damages) or otherwise, to the extent relating to the purchase price
of the Securities or amounts corresponding to such principal, premium, if any,
or interest on the Securities.
"Significant Subsidiary" is defined to mean, at any date of
determination, any Subsidiary of the Company that, together with its
Subsidiaries, (i) for the most recent fiscal year of the Company, accounted
for more than 10% of the consolidated revenues of the Company or (ii) as of
the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company, all as set forth on the most recently
available consolidated financial statements of the Company for such fiscal
year.
"Stated Maturity" is defined to mean, with respect to any debt security
or any installment of interest thereon, the date specified in such debt
security as the fixed date on which any principal of such debt security or any
such installment of interest is due and payable.
"Subsidiary" is defined to mean, with respect to any Person, any
corporation, association or other business entity of which more than 50% of
the outstanding Voting Stock is owned, directly or indirectly, by the Company
or by one or more other Subsidiaries of the Company, or by such Person and one
or more other Subsidiaries of such Person.
"10% Notes" is defined to mean the 10% Subordinated Notes Due 2003 of the
Company.
"TIA" or "Trust Indenture Act" is defined to mean the Trust Indenture Act
of 1939, as amended (15 U.S. Code Sections 77aaa-77bbb), as in effect on the
date this Indenture was executed, except as provided in Section 8.06 of this
Indenture; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "TIA" means, to the extent required in order
to comply with the TIA as so amended, the Trust Indenture Act of 1939 as so
amended.
"Trade Payables" is defined to mean, with respect to any Person, any
accounts payable or any other indebtedness or monetary obligation to trade
creditors created, assumed or Guaranteed by such Person or any of its
Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.
"Trustee" is defined to mean the party named as such in the first
paragraph of this Indenture until a successor replaces it in accordance with
the provisions of Article Six of this Indenture and thereafter is defined to
mean such successor.
"12-3/8% Notes" is defined to mean the 12-3/8% Senior Subordinated Notes
Due 1997 of the Company.
"12-5/8% Debentures" is defined to mean the 12-5/8% Subordinated
Debentures Due 2000 of the Company.
"United States Bankruptcy Code" is defined to mean the Bankruptcy Act of
Title 11 of the United States Code, as amended from time to time hereafter, or
any successor federal bankruptcy law.
"U.S. Government Obligations" is defined to mean securities that are
(i) direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the issuer
thereof at any time prior to the Stated Maturity of the Securities, and shall
also include a depositary receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Voting Stock" is defined to mean Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors of the
Company.
"Wholly Owned Subsidiary" is defined to mean, with respect to any Person,
any Subsidiary of such Person if all of the Common Stock or other similar
equity ownership interests (but not including Preferred Stock) in such
Subsidiary (other than any director's qualifying shares or Investments by
foreign nationals mandated by applicable law) is owned directly or indirectly
by such Person.
Section 2. AMENDMENT TO ARTICLE THREE. Article Three of the Indenture
is hereby amended and restated to read in its entirety as follows:
SECTION 3.01. PAYMENT OF SECURITIES. The Company shall pay the
principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. An installment of principal or
interest shall be considered paid on the date due if the Trustee or Paying
Agent (other than the Company, a Subsidiary of the Company, or any Affiliate
of any of them) holds on or before 12:00 P.M. (Noon), New York City time, on
that date money designated for and sufficient to pay the installment. If the
Company, any Subsidiary of the Company, or any Affiliate of any of them, acts
as Paying Agent, an installment of principal or interest shall be considered
paid on the due date if the entity acting as Paying Agent complies with the
last sentence of Section 2.04 of this Indenture.
The Company shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
borne by the Securities.
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, The City of New York an office or agency
where Securities may be surrendered for registration of transfer or exchange
or for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 9.02 of this Indenture.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in the Borough
of Manhattan, The City of New York for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
The Company hereby initially designates the office of the Trustee,
located in the Borough of Manhattan, The City of New York as such office of
the Company in accordance with Section 2.03 of this Indenture.
SECTION 3.03. Intentionally Omitted.
SECTION 3.04. Intentionally Omitted.
SECTION 3.05. Intentionally Omitted.
SECTION 3.06. Intentionally Omitted.
SECTION 3.07. Intentionally Omitted.
SECTION 3.08. Intentionally Omitted.
SECTION 3.09. Intentionally Omitted.
SECTION 3.10. CORPORATE EXISTENCE. Subject to Articles Three and Four
of this Indenture, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate
existence and the corporate existence of each Subsidiary in accordance with
the respective organizational documents of the Company and of each Subsidiary
of the Company and the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided that the Company shall not be
required to preserve any such right, license or franchise, or the corporate
existence of any Subsidiary of the Company, if the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole; and provided further that any Subsidiary of the
Company may consolidate with, merge into, or sell, convey, transfer, lease or
otherwise dispose of all or part of its property and assets to the Company or
any Wholly Owned Subsidiary of the Company.
SECTION 3.11. Intentionally Omitted.
SECTION 3.12. NOTICE OF DEFAULTS AND OTHER EVENTS. In the event that
any Indebtedness of the Company or any Significant Subsidiary of the Company
having an outstanding principal amount of $100,000 or more has been or could
be declared due and payable before its maturity because of the occurrence of
any event of default (i.e., following any required notice or passage of time
or both) under such Indebtedness (including, without limitation, any Default
or Event of Default under this Indenture), the Company, promptly after it
becomes aware thereof, will give written notice thereof to the Trustee.
SECTION 3.13. MAINTENANCE OF PROPERTIES AND INSURANCE. The Company will
cause all properties used or useful in the conduct of its business or the
business of any Subsidiary of the Company and material to the Company and its
Subsidiaries taken as a whole to be maintained and kept in normal condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company may be
necessary, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided that nothing in
this Section 3.13 shall prevent the Company or any Subsidiary of the Company
from discontinuing the use, operation or maintenance of any of such properties
or disposing of any of them, if such discontinuance or disposal is, in the
judgment of an Officer (or other agent employed by the Company or any
Subsidiary of the Company) of the Company or such Subsidiary of the Company
having managerial responsibility for any such property, desirable in the
conduct of the business of the Company or such Subsidiary of the Company.
The Company will provide or cause to be provided, for itself and its
Subsidiaries, insurance (including appropriate self-insurance) against loss or
damage of the kinds customarily insured against by corporations similarly
situated and owning like properties, including, but not limited to, products
liability insurance and public liability insurance with reputable insurers or
with the government of the United States of America, or an agency or
instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry.
SECTION 3.14. COMPLIANCE CERTIFICATES. (a) The Company shall deliver
to the Trustee, within 45 days after the end of each fiscal quarter (90 days
after the end of the last fiscal quarter of each year), an Officers'
Certificate stating whether or not the signers know of any Default or Event of
Default that occurred during such fiscal quarter. In the case of the
Officers' Certificate delivered within 90 days after the end of the Company's
fiscal year, such certificate shall contain a certification from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 3.14, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. If they do know of such
a Default or Event of Default, the certificate shall describe any such Default
or Event of Default and its status. The first certificate to be delivered
pursuant to this Section 3.14(a) shall be for the first fiscal quarter
beginning after the execution of this Indenture.
(b) The Company shall deliver to the Trustee, within 90 days after the
end of the Company's fiscal year, a certificate signed by the Company's
independent certified public accountants stating (i) that their audit
examination has included a review of the terms of this Indenture and the
Securities as they relate to accounting matters, (ii) that they have read the
most recent Officers' Certificate delivered to the Trustee pursuant to
paragraph (a) of this Section 3.14 and (iii) whether, in connection with their
audit examination, anything came to their attention that caused them to
believe that the Company was not in compliance with any of the terms,
covenants, provisions or conditions of Article Three and Section 4.01 of this
Indenture as they pertain to accounting matters and, if any Default or Event
of Default has come to their attention, specifying the nature and period of
existence thereof; provided that such independent certified public accountants
shall not be liable in respect of such statement by reason of any failure to
obtain knowledge of any such Default or Event of Default that would not be
disclosed in the course of an audit examination conducted in accordance with
generally accepted auditing standards in effect at the date of such
examination.
SECTION 3.15. COMMISSION REPORTS AND REPORTS TO HOLDERS. Within 15 days
after the Company files with the Commission copies of any annual reports and
other information, documents and reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) that
it may be required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act, the Company shall file the same with the Trustee. The
Company shall provide the Trustee with a sufficient number of copies of all
reports and other documents and information that the Trustee may be required
to deliver to the Securityholders under this Section 3.15. If the Company
directs the Trustee to make such mailings, the Company shall bear all expenses
incurred in connection with such mailing, including, without limitation,
postage and duplication of documentation. Delivery of such reports,
information and documents to the Trustee is for informational purposes only
and the Trustee's receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on
Officers' Certificates).
SECTION 3.16. WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive the Company from paying all or any portion
of the principal of or interest on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect
the covenants or the performance of this Indenture; and (to the extent that it
may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 3.17. NOTICE OF DEFAULT. The Company shall file with the
Trustee written notice of the occurrence of any Default or Event of Default
within five Business Days of its becoming aware of any such Default or Event
of Default.
Section 3. AMENDMENT TO ARTICLE FOUR. Section 4.01 of the Indenture is
hereby amended and restated to read in its entirety as follows:
SECTION 4.01. WHEN COMPANY MAY MERGE, ETC. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as
an entirety or substantially an entirety in one transaction or a series of
related transactions) to, any Person (other than a Subsidiary that is a Wholly
Owned Subsidiary of the Company; provided that, in connection with any merger
of the Company with a Subsidiary that is a Wholly Owned Subsidiary of the
Company, no consideration (other than Common Stock in the surviving Person or
the Company) shall be issued or distributed to the stockholders of the
Company) or permit any Person to merge with or into the Company unless:
(i) the Company shall be the continuing Person, or the Person (if
other than the Company) formed by such consolidation or into which the
Company is merged or that acquired or leased such property and assets of
the Company shall be a corporation organized and validly existing under
the laws of the United States of America or any jurisdiction thereof and
shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, in form and substance satisfactory to the
Trustee, all of the obligations of the Company on all of the Securities
and under this Indenture;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers' Certificate
and Opinion of Counsel, in each case stating that such consolidation,
merger or transfer and such supplemental indenture comply with this
provision and that all conditions precedent provided for herein relating
to such transaction have been complied with.
Section 4. AMENDMENT TO ARTICLE SEVEN. Section 7.03 of the Indenture is
hereby amended and restated to read in its entirety as follows:
SECTION 7.03. DEFEASANCE OF CERTAIN OBLIGATIONS. The Company may omit
to comply with any term, provision or condition set forth in Sections 3.03
through 3.14 of this Indenture, and clause (c) of Section 5.01 of this
Indenture with respect to Sections 3.03 through 3.14 of this Indenture, and
clauses (d), (e) and (h) of Section 5.01 of this Indenture shall be deemed not
to be Events of Default, and Article Eleven of this Indenture shall no longer
apply, in each case with respect to the outstanding Securities 123 days after
the deposit referred to in clause (i) below if:
(i) with reference to this Section 7.03, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section 6.09
of this Indenture) and conveyed all right, title and interest to the
Trustee for the benefit of the Holders, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
Trustee as trust funds in trust, specifically pledged to the Trustee for
the benefit of the Holders as security for payment of the principal of,
premium, if any, and interest, if any, on the Securities, and dedicated
solely to, the benefit of the Holders, in and to (A) money in an amount,
(B) U.S. Government Obligations that, through the payment of interest
and principal in respect thereof in accordance with their terms, will
provide, not later than one day before the due date of any payment
referred to in this clause (i), money in an amount or (C) a combination
thereof in an amount sufficient to pay and discharge, after payment of
all federal, state and local taxes or other charges and assessments in
respect thereof payable by the Trustee, the principal of, premium, if
any, and interest on the outstanding Securities on the Stated Maturity
of such principal or interest; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of said principal, premium, if
any, and interest with respect to the Securities; and provided further
that from and after the time of deposit, the money or U.S. Government
Obligations deposited shall not be subject to the rights of the holders
or owners of Senior Indebtedness pursuant to the provisions of Article
Eleven;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(iii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred;
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 7.03 have been complied with; and
(vi) the Company shall, at the time of the deposit referred to in
clause (i) above, not be prohibited from making payments in respect of
the Securities by Article Eleven of this Indenture.
Section 5. AMENDMENT TO ARTICLE EIGHT. Section 8.01 of the Indenture is
hereby amended and restated to read in its entirety as follows:
SECTION 8.01. WITHOUT CONSENT OF HOLDERS. The Company, when authorized
by a resolution of its Board of Directors, and the Trustee may amend or
supplement this Indenture or the Securities without notice to or the consent
of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Four of this Indenture;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities; or
(5) to make any change that does not adversely affect the rights of
any Holder.
Section 6. EFFECTIVENESS. This Supplemental Indenture shall be
effective in accordance herewith upon its execution but shall become operative
and shall supersede the Indenture to the extent provided herein only if, and
on the date that, the Company consummates the purchase of Securities pursuant
to and in accordance with the terms of the Offer to Purchase and Consent
Solicitation Statement of the Company, dated September 8, 1997. From and
after such date, the Indenture shall apply only to the extent not amended and
superseded hereby.
Section 7. GOVERNING LAW. The laws of the State of New York shall
govern this Supplemental Indenture without regard to principles relating to
conflicts of laws.
Section 8. SUCCESSORS. All agreements of the Company in this
Supplemental Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Supplemental Indenture shall bind its
successors.
Section 9. DUPLICATE ORIGINALS. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
Section 10. COUNTERPARTS. This Supplemental Indenture may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Section 11. DEFINED TERMS. All capitalized terms used but not defined
in this Supplemental Indenture shall have the meanings ascribed to them in the
Indenture.
_____________________
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
FORT XXXXXX CORPORATION,
as Issuer
By __________________________________
THE BANK OF NEW YORK,
as Trustee
By __________________________________
STATE OF )
) ss
COUNTY OF )
On this ____ day of _______________, 1997, before me personally
came ______________________, to me known, who, being by me duly sworn, did
depose and say that he resides in_______________________, that he
is__________________________ of Fort Xxxxxx Corporation, one of the
corporations described in and that executed the above instrument; and that he
signed his name thereto by authority of the Board of Directors of said
corporation.
____________________________________
Notary Public
(Notarial Seal)
STATE OF )
) ss
COUNTY OF )
On this ____ day of ________________, 1997, before me personally
came ____________________, to me known, who, being by me duly sworn, did
depose and say that such person resides in __________________, that such
person is ______________________ of The Bank of New York, one of the entities
described in and that executed the above instrument; and that such person
signed such person's name thereto by authority of ___________________ of The
Bank of New York.
____________________________________
Notary Public
(Notarial Seal)
