Exhibit 4(a)
FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated as of
September 19, 1997, between Fort Xxxxxx Corporation, a Delaware corporation
(the "Company"), and Norwest Bank Wisconsin, N.A., a Wisconsin banking
corporation, as Trustee (the "Trustee").
WITNESSETH:
WHEREAS, in accordance with Section 8.02 of the Indenture relating to the
9-1/4% Senior Notes due 2001 of the Company (the "Securities"), dated as of
March 15, 1993, among the Company and the Trustee (the "Indenture"), subject
to Sections 5.04 and 5.07 of the Indenture, the Company, when authorized by
the Board of Directors (as evidenced by 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 of Directors 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.
"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.
"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.
"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 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust Services.
"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.
"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.
"14-5/8% Debentures" is defined to mean the 14-5/8% Junior Subordinated
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 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 are
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 March 15 and September 15 of each year, commencing
September 15, 1993.
"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.
"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).
"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.
"Refinancing" is defined to mean the offer of the Securities and the
Subordinated Notes, the Incurrence of the 1993 Term Loans, certain additional
borrowings under the Company's revolving credit facility, the redemption of
the 14-5/8% Debentures and the prepayment of certain term Indebtedness under
the Bank Credit Agreement; all as undertaken in connection with the offer 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 March 1 or September 1 (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.
"Security Register" has the meaning provided in Section 2.03 of this
Indenture.
"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.
"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.
"Subordinated Notes" is defined to mean the 10% Subordinated Notes Due
2003 of the Company.
"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.
"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.
"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 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. Intentionally Omitted.
SECTION 3.11. 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 3.12. Intentionally Omitted.
SECTION 3.13. 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 3.14. 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 3.14 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 3.15. 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 of 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 3.15, 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 3.15(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 3.15 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 3.16. 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.
SECTION 3.17. 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. 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 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
3.15 of this Indenture, and clause (c) of Section 5.01 of this Indenture with
respect to Sections 3.03 through 3.15 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, 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 such principal, premium, if any,
and interest with respect to the Securities;
(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;
and
(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.
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 _________________________________
NORWEST BANK WISCONSIN, N.A.,
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 )
)
COUNTY OF )
I, ___________________________, a Notary Public in the State of Wisconsin,
certify that ____________________________ personally known to me to be the
same person who is an Officer of Norwest Bank Wisconsin, N.A., Milwaukee,
Wisconsin subscribed to the foregoing instrument, appeared before me this day
in person and acknowledged that such person being thereunto duly authorized
signed and delivered the said instrument as the free and voluntary act of said
Bank and as such person's own free and voluntary act, for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this ____day of ______________, 1997.
__________________________________________
__________________________________________
Name Printed
Notary Public, State of Wisconsin
My commission:
