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EXHIBIT 4a3
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ARKLA, INC.
TO
CITIBANK, N.A., Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of November 15, 1989
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SUPPLEMENTING AND AMENDING THE
INDENTURE DATED AS OF DECEMBER 1, 1986
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SECOND SUPPLEMENTAL INDENTURE, dated as of November 15, 1989,
between ARKLA, INC., a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its principal
office at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000 and at 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, and CITIBANK, N.A., a national banking
association, as Trustee (herein called the "Trustee").
R E C I T A L S
WHEREAS, to provide for its lawful corporate purposes the Company has
duly authorized the issue from time to time of its debentures, notes or other
evidences of unsecured indebtedness, which are to be issued in one or more
series (the "Securities"); the Company has heretofore made, executed and
delivered to the Trustee its Indenture dated as of December 1, 1986 and its
First Supplemental Indenture, dated as of September 30, 1988, (collectively,
the "Indenture"); and
WHEREAS, the Board of Directors of the Company has determined that it
is desirable to add an additional covenant of the Company to Article Ten of the
Indenture solely for the benefit of the Holders of each series of Securities
which provides that such series will have the benefit of such covenant in which
the Company will covenant and agree that each Holder of the Securities shall
have the right, at such Holder's option, to require the Company to purchase all
or any part of such Holder's Securities, at the option of such Holder, on a
specified date if certain events occur and certain conditions specified in this
Supplemental Indenture are met; and
WHEREAS, Section 901 of Article Nine of the Original Indenture
provides that under certain conditions the Company and Trustee, may, without
the consent of the Holders of Securities, from time to time and at any time,
enter into an indenture or indentures supplemental thereto, inter alia, (a) to
add to the covenants of the Company for the benefit of the Holders of all or
any series of Securities (and if such covenants are to be for the benefit of
less than all series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to surrender any right
or power herein conferred upon the Company; or (b) to add any additional Events
of Default; and
WHEREAS, all the requirements prescribed by law and by the Certificate
of Incorporation of the Company have been fully complied with and all
conditions and requirements necessary to authorize the execution,
acknowledgment and delivery of this Second Supplemental Indenture and duly and
legally effect the modifications and alterations of the Indenture provided for
in this Second Supplemental Indenture, and to make the Indenture as
supplemented and amended by this Second Supplemental Indenture, a valid,
binding and legal instrument for the benefit of the Holders of Securities, have
been complied with;
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NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH that for
and in consideration of the premises and the acceptances or purchases of the
Securities by the Holders thereof, the Company and the Trustee mutually
covenant and agree for the equal and proportionate benefit of all Holders of
the Securities or of series thereof, as follows:
ARTICLE I
MODIFICATION OF THE INDENTURE
SECTION 1.1 SUPPLEMENT TO ARTICLE TEN OF THE INDENTURE. Article Ten
of the Indenture is modified by adding a new and additional Section to the
Indenture, which additional Section shall read in its entirety as follows:
SECTION 1013. Put Right of Holders Upon a Designated Event and a
Rating Decline.
If the terms of any series of Securities provides that such series
shall have the benefit of the following covenant, the Company hereby
agrees as follows:
In the event that there occurs at any time prior to any date
specified in the terms of such series both (a) a Designated Event (as
hereinafter defined) with respect to the Company and (b) a Rating
Decline (as hereinafter defined), each Holder of the Securities shall
have the right, at such Holder's option, to require the Company to
purchase all or any part of such Holder's Securities on the date
("Repurchase Date") that is 100 days after the last to occur of public
notice of the Designated Event and the Rating Decline, at 100% of the
principal amount thereof, plus accrued interest to the Repurchase
Date.
On or before the twenty-eighth day after the last to occur of
public notice of the occurrence of a Designated Event and the Rating
Decline, the Company is obligated to notify the Trustee of such
events, and promptly thereafter to mail, or cause to be mailed,
first-class, postage prepaid, to all Holders of the Securities, at the
address of record of such Holder, a notice regarding the Designated
Event, the Rating Decline and the repurchase right. The notice shall
state the Repurchase Date, the date by which the repurchase right must
be exercised, the applicable price for such Securities and the
procedure which the Holder must follow to exercise this right. To
exercise this right, the Holder of such Securities must deliver at
least ten days prior to the Repurchase Date written notice to the
Company (or an agent designated by the Company for such purpose and
notified to the Trustee and the Holders)
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of the Holder's exercise of such right, the name in which the
Securities were registered, and the principal amount to be
repurchased, together with the Securities with respect to which the
right is being exercised, duly endorsed for transfer to the Company.
Such written notice shall be irrevocable. Securities repurchased
pursuant to this section shall be delivered to the Trustee and
cancelled as provided in Section 309 of the Indenture.
As used herein, a "Designated Event" shall be deemed to have
occurred at such a time as (i) a "person" or "group" (within the
meaning of Section 13 (d) (3) of the Securities Exchange Act of 1934,
as amended (the 1934 Act")) becomes the "beneficial owner" (as defined
in Rule 13d-3 under the 0000 Xxx) of more than 30% of the total voting
power of all classes of stock then outstanding of the Company normally
entitled to vote in elections of directors ("Voting Stock"); or (ii)
during any period of two consecutive years, individuals who at the
beginning of such period constituted the Company's Board of Directors
(together with any new director whose election by the Company's Board
of Directors or whose nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the directors then in office; or (iii) the Company
consolidates with or merges into another corporation or conveys,
transfers or leases all or substantially all of its assets to any
person, or any corporation consolidates with or merges into the
Company, in either event pursuant to a transaction in which Voting
Stock of the Company is changed into or exchanged for cash, securities
or other property, provided that such transaction (a) between the
Company and its Subsidiaries or between Subsidiaries or (b) involving
the exchange of the Company's Voting Stock as consideration in the
acquisition of another business or businesses (without change or
exchange of the Company's outstanding Voting Stock into or for cash,
securities or other property) shall be excluded from the operation of
this clause (iii); or (iv) the Company, one or more employee benefit
plans ("Employee Benefit Plans") as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended,
maintained by the Company or any Subsidiary thereof, or any Subsidiary
purchases or otherwise acquires, directly or indirectly, beneficial
ownership of Voting Stock of the Company if, after giving effect to
such purchase or acquisition, the Company (together with such Employee
Benefit Plans and such Subsidiaries) acquires 20% or more of the
Company's Voting Stock within any 12-month period; or (v) on any date
(a
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"Calculation Date") the Company makes any distribution or
distributions of cash, property or securities (other than regular
dividends, and distributions of capital stock of the Company) to
holders of Voting Stock of the Company or the Company, any Employee
Benefit Plans or any Subsidiary purchases or otherwise acquires
beneficial ownership of Voting Stock of the Company and the sum of the
fair market value of such distribution or purchase, plus the fair
market value of all other such distributions and purchases which have
occurred during the preceding 12-month period, is at least 20% of the
fair market value of the outstanding Voting Stock of the Company. The
percentage in clause (v) above is calculated on such Calculation Date
by determining the percentage of the fair market value of the
Company's outstanding Voting Stock as of such Calculation Date which
is represented by the fair market value of the distributions and
purchases which have occurred on such date and adding to that
percentage all of the percentages which have been similarly calculated
on the Calculation Dates of all such distributions and purchases
during the preceding 12-month period.
As used herein, a "Rating Decline" shall be deemed to have
occurred if on any date within the 90-day period following public
notice of the occurrence of a Designated Event (which period shall be
extended so long as the rating of the Securities is under publicly
announced consideration for possible downgrade by a Rating Agency (as
hereinafter defined) (i) in the event the Securities are rated by one
or both Rating Agencies on the Rating Date (as hereinafter defined) as
Investment Grade (as hereinafter defined), the rating of the
Securities by such Rating Agency or Rating Agencies shall fall below
Investment Grade, or (ii) in the event the Securities are rated by
both Rating Agencies on the Rating Date below Investment Grade, the
rating of the Securities by either Rating Agency shall be at least one
Full Rating Category (as hereinafter defined) below the rating of the
Securities by such Rating Agency on the Rating Date.
As used herein, "Rating Agency" shall mean Standard & Poor's
Corporation and its successors ("S&P"), and Xxxxx'x Investors Service,
Inc. and its successors ("Moody's"), or if S&P or Moody's or both
shall not make a rating on the Securities publicly available, a
nationally recognized statistical rating agency or agencies, as the
case may be, selected by the Company which shall be substituted for
S&P or Moody's or both, as the case may be; "Investment Grade" shall
mean BBB- or higher by S&P or Baa3 or higher by Moody's or the
equivalent of such ratings by S&P or Moody's or by any other Rating
Agency selected as provided above, and "Rating Date" shall mean the
date which
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is 121 days prior to public notice of the occurrence of a Designated
Event.
As used herein, the term "Full Rating Category" shall mean (i)
with respect to S&P, any of the following categories: BB, B, CCC, CC
and C, (ii) with respect to Moody's, any of the following categories:
Ba, B, Caa, Ca and C and (iii) with respect to any other Rating
Agency, the equivalent of any such category of S&P or Moody's used by
such other Rating Agency. In determining whether the rating of the
Securities has decreased by the equivalent of one Full Rating
Category, gradation within Full Rating Categories (+ and - for S&P; 1,
2, and 3 for Moody's; or the equivalent gradation for another Rating
Agency) shall be taken into account (e.g., with respect to S&P, a
decline in a rating from BB+ to BB-, or from BB to B+, will constitute
a decrease of less than one Full Rating Category).
Default in the performance or breach of this covenant with
respect to Securities of any series entitled to the benefits of this
covenant shall be an Event of Default with respect to all series of
Securities entitled to the benefits of this covenant pursuant to
Section 501(7) of the Indenture following the continuance of such
default or breach for a period of 90 days after the date on which
written notice specifying such failure, stating that such notice is a
"Notice of Default" hereunder and demanding that the Company remedy
the same shall have been given to the Company by the Trustee, or to
the Company and the Trustee by the Holders of not less than 25% in
aggregate principal amount of all series of Securities entitled to the
benefits of this covenant at the time Outstanding.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in this covenant, with
respect to the Securities of any series entitled to the benefits of
this covenant if before the time for such compliance the Holders of at
least 66 2/3% in aggregate principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to
or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of
any such term, provision or condition shall remain in full force and
effect.
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ARTICLE II
PARTICULAR REPRESENTATIONS AND COVENANTS
OF THE COMPANY
SECTION 2.1 AUTHORITY OF THE ISSUER. The Company is duly authorized
under the laws of the State of Delaware and all other applicable laws to
execute and deliver this Second Supplemental Indenture, and all corporate
action on its part required for the execution and delivery of this Second
Supplemental Indenture has been, duly and effectively taken.
SECTION 2.2 TRUTH OF RECITALS AND STATEMENTS. The Company warrants
that the recitals of fact and statements contained in this Second Supplemental
Indenture are true and correct, and that the recitals of fact and statements
contained in all certificates and other documents furnished thereunder will be
true and correct.
ARTICLE III
CONCERNING THE TRUSTEE
SECTION 3.1 ACCEPTANCE OF TRUSTS. The Trustee accepts the trusts
hereunder and agrees to perform the same, but only upon the terms and
conditions set forth in the Indenture and in this Second Supplemental
Indenture, to all of which the Issuer and the respective Holders of Securities
at any time outstanding agree by their acceptance thereof.
SECTION 3.2 NO RESPONSIBILITY OF TRUSTEE FOR RECITALS, ETC. The
recitals and statements contained in this Second Supplemental Indenture shall
be taken as the recitals and statements of the Company, and the Trustee assumes
no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this second Supplemental
Indenture.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.1 RELATION TO THE INDENTURE. The provisions of this second
Supplemental Indenture shall become effective immediately upon the execution
and delivery hereof. This Second Supplemental Indenture is executed as and
shall constitute an indenture supplemental to the Indenture. All the terms and
provisions herein contained shall form a part of the indenture for all purposes
as fully and with the same effect as if all such terms and provisions had been
set forth in the Indenture and each and every term and condition contained in
the Indenture shall apply to this Second Supplemental Indenture with the same
force and effect as if the same were in this
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Second Supplemental Indenture set forth in full, with such omissions,
variations and modifications thereof as may be appropriate to make each such
term and condition conform to this Second Supplemental Indenture. The
Indenture is hereby ratified and confirmed and shall remain and continue in
full force and effect in accordance with the terms and provisions thereof, as
supplemented and amended by this Second Supplemental Indenture and the
Indenture and this Second Supplemental Indenture shall be read, taken and
construed together as one instrument. This Second Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of New
York.
SECTION 4.2 TRUST INDENTURE ACT. If any provision of this Second
Supplemental Indenture limits, qualifies or conflicts with any other provision
of this Second Supplemental Indenture or any provision of the Indenture which
is required to be included by any of the provisions of Sections 310 to 317
inclusive of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 4.3 MEANING OF TERMS. Any term used in this Second
Supplemental Indenture which is defined in the Indenture shall have the meaning
specified in the Indenture, unless the context shall otherwise require.
SECTION 4.4 COUNTERPARTS. This Second Supplemental Indenture may be
executed in several counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Second Supplemental
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.
Attest: ARKLA, INC.
/s/ X. X. XXXXX /s/ XXX XXXXXXX
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X. X. Xxxxx Name: Xxx Xxxxxxx
Vice President-Finance, Title: Vice Chairman of the Board
Secretary and Treasurer
Attest: CITIBANK, N.A., as Trustee
XXX X. XXXXXXX /s/ X. XXXXXXXX
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Name: Xxx X. Xxxxxxx Name: X. XxXxxxxx
Title: Trust Officer Title: Vice President
(CORPORATE SEAL)
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XXXXX XX XXXXXXXXX
XXXXXX XX XXXXX
Xx this 21 day of November, 1989 before me personally came Xxx
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is Vice Chairman of ARKLA, INC., one of the corporations described in and which
executed the foregoing instrument; that he knows the corporate 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 name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
(NOTARIAL SEAL) XXXX X. XXXXXXXXX
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Notary Public
Commission Expires:
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XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
Xx this 22 day of November, 1989 before me personally came X.
XxXxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is Vice President of CITIBANK, N.A., one of the corporations described in and
which executed the foregoing instrument; that he knows the corporate 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 name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
(NOTARIAL SEAL) XXXX X. XXXXXXXX
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Notary Public
Commission Expires:
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ENZO . CARBOCCI
Notary Public, State of New York
No. 00-0000000
Qualified in Richmond County
Certificate Filed in New York County
Term Expires March 30, 1990
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