EXHIBIT 4.1B
SUPPLEMENTAL INDENTURE, dated as of January 29, 1997, between XXXXXX
INTERNATIONAL INC., a Delaware corporation (the "Company"), and FIRST TRUST
NATIONAL ASSOCIATION, a national banking association, as Trustee (the
"Trustee").
The Company has previously executed and delivered to the Trustee a
certain amended and restated indenture, dated as of November 15, 1985, as
supplemented by the First Supplemental Indenture, dated as of May 18, 1988
(the "Indenture"), pursuant to which one or more series of unsecured
debentures, notes or other evidences of indebtedness of the Company (the
"Securities") may be issued from time to time. All terms used in this
Supplemental Indenture which are not defined in this Supplemental Indenture
but are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
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 Indenture to permit the issuance of Securities in the form of a
Global Security or Securities.
Section 9.01(i) of the Indenture provides that the Company and the
Trustee may amend the Indenture without the consent of any Securityholder to
make any change that does not adversely affect the rights of any
Securityholder.
The Company has furnished the Trustee with (i) an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent provided for
in the Indenture to the execution of this Supplemental Indenture have been
complied with, and (ii) a copy of a Board Resolution authorizing the
execution of indentures, including this Supplemental Indenture.
All things necessary to make this 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, IT IS AGREED AS FOLLOWS:
ARTICLE ONE
SECTION 1.1 SECTION 1.01 of the Indenture is hereby supplemented and
amended to add the following definitions in the appropriate alphabetical
order.
"Depositary" means, with respect to Securities issuable or issued in
whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Securities Exchange Act of 1934, as amended, or
any successor thereto, which shall be designated by the Company pursuant to
either Section 2.01
or 2.10 and, unless otherwise specified by the Company, The Depository Trust
Company.
"Global Security" means, when used with respect to any series of
Securities issued hereunder, a Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction, all in accordance with this Indenture and (i)
an indenture supplemental hereto, if any, or an Officers' Certificate and
(ii) a written order of the Company signed by two Officers, which shall be
registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Securities of such series or any portion
thereof, in either case having the same terms, including, without limitation,
the same original issue date, date or dates on which principal is due,
interest rate or method of determining interest, and, in the case of original
issue discount Securities, which have the same issue price and accretion
rate. "Global Security" shall include any temporary Global Security and any
permanent Global Security.
"Participant" means a member of, or participant in, a Depositary.
ARTICLE TWO
SECTION 2.1. Unlimited in Amount, Issuable in Series, Form AND DATING.
Section 2.01 of the Indenture is hereby supplemented and amended by deleting
the word "and" after the semi-colon in subparagraph (n), by deleting
subparagraph (o) and by adding the following new subsections after subsection
2.01(n):
"(o) if the Securities of such series shall be issuable in whole or in
part in the form of, or exchangeable for, one or more Global Securities and,
in such case, the terms and conditions, if any, upon which such Global
Security or Global Securities shall be exchangeable by the Company or the
Holder, in whole or in part, for definitive Securities, and the Depositary for
such Global Security or Global Securities; and
(p) any other terms of the Securities of such series (which terms shall
not be inconsistent with the provisions of this Indenture)."
SECTION 2.2. Temporary Securities; Global Securities. Section 2.10 of
the Indenture hereby supplemented and amended by amending the current heading
to read "Temporary Securities, Global Securities" and by inserting as a new
paragraph at the end of such section the following:
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"If the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued in whole or in part as one
or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with Section 2.02 and a written order of the Company
signed by two Officers Company delivered to the Trustee thereunder,
authenticate and deliver to the Depositary or pursuant to the Depositary's
instruction one or more Global Securities. Each Global Security (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Securities of such series to be represented by such
Global Security or Securities, or such portion thereof as the Company shall
specify in a written order of the Company signed by two Officers, (ii) shall
be registered in the name of the Depositary for such Global Security or
Securities or its nominee, and (iii) shall bear a legend substantially
identical to the following: "Unless this certificate is presented by an
authorized representative of the Depositary to the Issuer or its agent for
registration of transfer, exchange, or payment, and any certificate issued is
registered in the name of the nominee of the Depositary or in such other name
as is requested by an authorized representative of the Depositary (and any
payment is made to the nominee of the Depositary or to such other entity as
is requested by an authorized representative of the Depositary), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, the nominee of
the Depositary, has an interest herein. Unless and until it is exchanged in
whole or in part for individual [Securities] registered in the names of
participants in the Depositary, this certificate may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
Notwithstanding any other provision of Section 2.06 or of this Section
2.10, except as otherwise specified as contemplated by Section 2.01 and
except for exchanges of Global Securities as provided in the following
paragraphs, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.06, only to a nominee of the
Depositary for such series or by a nominee of such Depositary for such series
to such Depositary or another nominee of such Depositary or by such
Depositary or any nominee to a successor Depositary for such series selected
or approved by the Company or to a nominee of such successor Depositary.
If at any time the Depositary for a series of Global Securities notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or if at any time the
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Depositary for such series shall no longer be registered or in good standing
as a clearing agency under the United States Securities Exchange Act of 1934,
as amended, or other applicable statute or regulation, the Company shall
appoint a successor Depositary with respect to such series. If a successor
Depositary for such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such condition, as
the case may be, the Company will execute, and the Trustee will authenticate
and deliver in accordance with a written order of the Company signed by two
Officers, individual Securities of such series in registered form, in
authorized denominations, of like tenor and terms and in an aggregate
principal amount equal to the principal amount of the Global Security of such
series in exchange for such Global Security.
The Company may at any time and in its sole discretion determine that
the Securities of any series or portion thereof issued or issuable in the
form of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will execute, and
the Trustee, upon receipt of a written order of the Company signed by two
Officers for the authentication and delivery of individual Securities of such
series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Securities of such series in registered
form, in authorized denominations, of like tenor and terms and in an
aggregate principal amount equal to the principal amount of such Global
Security of such series or portion thereof in exchange for such Global
Security.
If specified by the Company pursuant to Sections 2.01 and 2.02 with
respect to Securities issued or issuable in the form of a Global Security,
the Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of like
tenor or terms in definitive form on such terms as are acceptable to the
Company and such Depositary. Thereupon the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge, (i) to each
Person specified by such Depositary a new Security or Securities of the same
series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest as specified by such
Depositary in the Global Security; and (ii) to such Depositary a new Global
Security of like tenor and terms and in an authorized denomination equal to
the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered to
Holders thereof.
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In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver
individual Securities in definitive registered form in authorized
denominations. Upon the exchange of the entire principal amount of Global
Security for individual Securities, such Global Security shall be cancelled
by the Trustee or its agent. Except as provided in the preceding paragraphs,
Securities issued in exchange for a Global Security pursuant to this Section
2.10 shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
Participants or otherwise, shall instruct the Trustee or any registrar. The
Trustee or registrar shall deliver at its corporate trust office such
Securities to the Person in whose names such Securities are so registered.
Except as provided above, owners solely of beneficial interests in
Global Securities shall not be entitled to receive physical delivery of
Securities in definitive form and will not be considered the Holders thereof
for any purpose under the Indenture or this Supplemental Indenture.
Participants shall have no rights under the Indenture or this
Supplemental Indenture with respect to any Global Security held on their
behalf by a Depositary, and such Depositary may be treated by the Company,
the Trustee and any registrar as the owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any registrar from giving effect to any
written certification, proxy or other authorization furnished by a Depositary
or impair, as between a Depositary and its Participants, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security, including without limitation the granting of proxies or other
authorization of Participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a
Holder is entitled to give or take under the Indenture.
None of the Company, the Trustee, any paying agent or registrar will
have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests."
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ARTICLE THREE
SECTION 3.1. EFFECTIVENESS. This Supplemental Indenture shall take
effect on the date hereof and shall amend the provisions of the Indenture with
respect to each series of Securities issued under the Indenture on or after
the date hereof.
SECTION 3.2. ILLINOIS LAW TO GOVERN. This Supplemental Indenture shall
be deemed to be a contract made under the laws of the State of Illinois, and
for all purposes shall be construed in accordance with the laws of said
State, except as may otherwise be required by mandatory provisions of law.
SECTION 3.3 TRUST INDENTURE ACT TO CONTROL. If and to the extent that
any provision of this Supplemental Indenture limits, qualifies, or conflicts
with another provision included in the Indenture or this Supplemental
Indenture which is required to be included in this Supplemental Indenture by
any of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939,
such required provision shall control.
SECTION 3.4 EXECUTION IN COUNTERPARTS. This Supplemental Indenture may
be executed in any number of counterparts, each of which 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, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
XXXXXX INTERNATIONAL INC.
By:________________________________
Senior Vice President and
Chief Financial Officer
[SEAL]
ATTEST:
______________________________
(Secretary)
FIRST TRUST NATIONAL ASSOCIATION
By:________________________________
Authorized Officer
[SEAL]
ATTEST:
______________________________
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STATE OF ILLINOIS )
)SS.:
COUNTY OF XXXX )
I, _______________________________________, a notary public in and for
said county, in the state aforesaid, do hereby certify that Xxxxxx
International Inc., a Delaware corporation, and ___________ and
_______________, of said corporation, personally known to me to be the same
persons whose names are subscribed to the foregoing instrument as
______________ and ________________, respectively, appeared before me this
day in person and acknowledged that they signed and delivered the said
instrument as their own free and voluntary act, and as the free and voluntary
act of said corporation for the uses and purposes therein set forth; and said
________________, did also then and there acknowledge that he, a custodian of
the corporate seal of said corporation, did affix the corporate seal of said
corporation to said instrument as his own free and voluntary act and as the
free and voluntary act of said corporation, for the uses and purposes therein
set forth.
Given under my hand and notarial seal this _____ day of February, 1997.
____________________________
Notary Public
My Commission expires:______
STATE OF ILLINOIS )
)SS.:
COUNTY OF XXXX )
I, ______________________________________, a notary public in and for
said county, in the state aforesaid, do hereby certify that First Trust
National Association, a national banking association, and ______________ and
______________, of said corporation, personally known to me to be the same
persons whose names are subscribed to the foregoing instrument
as_______________ and ________________, respectively, appeared before me this
day in person and acknowledged that they signed and delivered said instrument
as their own free and voluntary act, and as the free and voluntary act of
said corporation, for the uses and purposes therein set forth; and said
________________, did also then and there acknowledge that he, as custodian
of the corporate seal of said corporation, did affix the corporate seal of
said corporation to said instrument as his own free and voluntary act and as,
the free and voluntary act of said corporation, for the uses and purposes
therein set forth.
Given under my hand and notarial seal this _____day of February, 1997.
____________________________
Notary Public
My Commission expires:______
