FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of February 20, 2002 (this
"Supplemental Indenture"), between Xxxxxx Xxxxxxx Ltd., a company duly organized
and existing under the laws of Bermuda (the "Company") and BNY Midwest Trust
Company, an Illinois banking corporation, not in its individual capacity but
solely as Trustee (the "Trustee"). All capitalized terms used herein and not
otherwise defined shall have the meaning provided in the Indenture referred to
below.
RECITALS:
WHEREAS, the Company, Xxxxxx Xxxxxxx LLC, a Delaware limited liability
company, as the guarantor, and the Trustee are parties to an Indenture, dated as
May 31, 2001 (the "Indenture");
WHEREAS, Section 7.1(h) of the Indenture provides that the Company,
when authorized by a Board Resolution, and the Trustee may jointly amend the
Indenture and the Securities without the consent of any Holder of Securities to
cure any ambiguity, to correct or supplement any provision therein which may be
inconsistent with any other provision therein or which is otherwise defective,
or to make any other provisions with respect to matters or questions arising
under the Indenture which the Company and the Trustee may deem necessary or
desirable and which shall not be inconsistent with the provisions of the
Indenture, so long as such action does not, in the good faith opinion of the
Board of Directors of the Company (as evidenced by a Board Resolution) and the
Trustee, adversely affect the interests of the Holders of Securities in any
material respect;
WHEREAS, the Company proposes to correct a defect in Section 4.1(d) of
the Indenture; and
WHEREAS, all actions by the Company necessary to make this Supplemental
Indenture a valid agreement of the Company, in accordance with its terms, and a
valid amendment of, and supplement to, the Indenture have been done.
NOW THEREFORE, it is agreed as follows:
ARTICLE I
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AMENDMENT
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Section 1.01. Section 4.1(d) of the Indenture is hereby amended by
deleting it in its entirety, and replacing it with the following Section 4.1(d):
"(d) the Company or the Guarantor fails to make any
payment (of principal or interest (regardless of amount) in
respect of any Indebtedness aggregating $15,000,000 or more,
when and as the same shall become due and payable (beyond any
applicable grace period expressly set forth in the governing
documents), unless such Indebtedness is discharged; or any
event or condition occurs that results in any such
Indebtedness becoming due prior to its scheduled maturity,
unless such acceleration is waived, cured, rescinded or
annulled, and such failure or such event or condition shall
continue for a period of 30 days after written notice of such
failure shall have been given to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities;
or"
ARTICLE II
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MISCELLANEOUS
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Section 2.01. This Supplemental Indenture is limited as specified and
shall not constitute a modification, acceptance or waiver of any other provision
of the Indenture.
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Section 2.02. This Supplemental Indenture may be executed in any number
of counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
Section 2.03. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
Section 2.04. The recitals contained herein shall be taken as the
statements of the Company and not of the Trustee and the Trustee assumes no
responsibility for the correctness thereof and makes no representations as to
the validity or sufficiency of this Supplemental Indenture.
Section 2.05. Upon the execution of this Supplemental Indenture, the
Indenture and the Securities theretofore issued shall be deemed to be modified
and amended in accordance with this Supplemental Indenture and the respective
rights, limitation of rights, obligations, duties and immunities under the
Indenture of the Company and the Trustee and the Holders of the Securities shall
thereafter be determined, exercised and enforced thereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of this Supplemental Indenture shall be and be deemed to be part of the terms
and conditions of the Indenture and the Securities theretofore issued for any
and all purposes.
Section 2.06. This Supplemental Indenture shall become effective on the
date first above written upon receipt of the executed counterparts from each
party to this Supplemental Indenture.
Section 2.07. INDEMNITY. The Company shall indemnify the Trustee
against any and all claims by the Holders arising out of or in connection with
its execution and delivery of this
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Supplemental Indenture, except any such loss, liability, claim, damage or
expense as determined by a court of competent jurisdiction to have been caused
by the negligence or bad faith of the Trustee. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld or delayed.
Section 2.08. SUCCESSORS. All agreements of the Company in this
Supplemental Indenture shall bind its successors. All agreements of the Trustee
in this Supplemental Indenture shall bind its successors.
Section 2.09. SEVERABILITY. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 2.10. HEADINGS. The headings of the Articles and Sections of
this Supplemental Indenture have been inserted for convenience of reference only
and are not to be considered part of this Supplemental Indenture and shall in no
way modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
XXXXXX XXXXXXX LTD.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
BNY MIDWEST TRUST COMPANY, as Trustee
By: /s/ X. Xxxxxx
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Name: X. Xxxxxx
Title: Assistant Vice President
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