EXHIBIT 4.7
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE dated as of September 19, 1997 between
FORT XXXXX CORPORATION, formerly Xxxxx River Corporation of Virginia, a
corporation duly organized and existing under the laws of the Commonwealth of
Virginia (the "Company") and THE BANK OF NEW YORK, a New York corporation, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee a certain Indenture, dated as of November 1, 1991 (the "Original
Indenture"), pursuant to which one or more series of unsecured debentures,
securities or other evidences of indebtedness of the Company (the "Securities")
may be issued from time to time; and
WHEREAS, Section 901 of the Original Indenture provides that, without
the consent of any Holders of Securities or coupons, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into an indenture supplemental to the Original Indenture for the
purpose, among other things, of (i) changing or eliminating any of the
provisions of the Original Indenture, provided that such change or elimination
shall become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is entitled
to the benefit of such provision; (ii) establishing the form or terms of
Securities of any series and any related coupons as permitted by Sections 201
and 301 of the Original Indenture; or (iii) making any other provisions with
respect to matters or questions arising under the Original Indenture, provided
that such actions shall not adversely affect the interest of the Holders of
Securities of any series or any related coupons in any material respect; and
WHEREAS, the Company, pursuant to the foregoing authority, desires to
amend and supplement the Original Indenture in certain respects.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, it is
mutually agreed, for the equal and proportionate benefit of all Holders of
Securities of any series originally issued after the date hereof, as follows:
ARTICLE ONE
The Original Indenture is supplemented and amended in the following
respects:
1. The introductory paragraph of the Original Indenture is hereby
amended by inserting the words "Fort Xxxxx Corporation, formerly" prior to the
words "Xxxxx River Corporation of Virginia."
2. Section 301 of the Original Indenture is amended by deleting the
word "and" after the semicolon in clause 16 and inserting after clause 16 the
following:
"(17) provisions, if any granting special rights to the
Holders of Securities of the series upon the occurrence of
such events as may be specified;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to Section 1010) of the Company with
respect to Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of Default or
covenants set forth herein;
(19) whether, under what circumstances and the currency in which
the Company will pay additional amounts as contemplated by Section
1010 on the Securities of the series to any Holder who is not a
United States person (including any modification to the definition
of such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such additional amounts
(and the terms of any such option); and"
In addition clause 17 of Section 301 of the Original Indenture is
renumbered as clause 20.
3. Clause 5 of Section 501 of the Original Indenture is amended by
deleting the phrase "at least $10,000,000 aggregate principal amount of
indebtedness for borrowed money" and replacing it with the phrase "at least
$25,000,000 individually or $50,000,000 in the aggregate of principal amount of
indebtedness for borrowed money" and by deleting the period at the end of such
clause and inserting in lieu thereof "; or".
4. Clause 8 of Section 501 of the Original Indenture is hereby
renumbered as clause 9, and the following is added as a new clause 8 of Section
501 of the Original Indenture:
"(8) failure within 60 days to pay, bond or otherwise
discharge any uninsured final judgment or court order
rendered against the Company or any Subsidiary requiring the
payment of money in excess of $50,000,000 which is not stayed
on appeal or is not otherwise being contested in good faith".
5. After Section 906 of the Original Indenture, the following is added
as Section 907 of the Original Indenture:
"Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the
provisions of Section 902, the Company shall give notice
thereof to the Holders of the Outstanding Securities
affected, in the manner provided for in Section 106, setting
forth in general terms the substance of such supplemental
indenture."
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6. Subsection (a) of Section 1006 of the Original Indenture is hereby
amended as follows:
(a) The words "create or assume" are deleted and replaced
with the words "create, incur, assume or guarantee" in each
place in which they appear.
(b) In additional, the words "indebtedness that is secured by
a" are added prior to the word "mortgage" in the third line,
and the words "indebtedness that is secured by" are added
prior to the words "any of the following" at the end of the
paragraph.
7. Clause (vii) of subsection 1006(a) of the Original Indenture is
hereby amended by adding at the end thereof the phrase "or liens existing at the
date of the original issuance of the Securities of a Series".
8. The current clause (xiii) of subsection 1006(a) of the Original
Indenture is renumbered as clause (xiv) and the following is added as clause
(xiii) of subsection 1006(a) of the Original Indenture:
"(xiii) guarantees of indebtedness that are secured by a lien on
Principal Property located outside of the United States;"
In addition, the reference in clause (xiii) of subsection 1006(a) of
the Original Indenture (now renumbered clause (xiv) of subsection 1006(a)
pursuant to this supplement) to clause (xii) shall be amended to be "this clause
(xiv)".
9. Clause (ii) of subsection 1006(b) of the Original Indenture is
deleted and replaced with the following:
"(ii) "Consolidated Net Tangible Assets" means the total of
all assets at their net book value (after deducting related
depreciation, depletion, amortization and all other valuation
reserves which, in accordance with generally accepted
accounting principles, should be set aside in connection with
the business conducted) after deducting therefrom (A) all
current liabilities and (B) the value of all goodwill,
tradenames, trademarks, patents and other intangible assets,
in each case net of applicable amortization, as appearing on
a consolidated balance sheet of the Company and its
consolidated Subsidiaries, prepared in accordance with
generally accepted accounting principles."
10. Clause (iii) of subsection 1006(b) o of the Original Indenture
is amended by inserting after the word "means" the following: ", without
duplication." In addition, the following shall be inserted in the provision of
clause (iii) of subsection (b), after the phrase "shall not include:"
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"any guarantee of indebtedness secured by a lien on a
Principal Property located outside of the United States or
any guarantee by any Restricted Subsidiary the primary assets
of which are Principal Properties located outside of the
United States, or".
11. Clause (iv) of subsection 1006(b) of the Original Indenture is
deleted and replaced with the following:
"(iv) Principal Property" means any manufacturing plant,
research facility or warehouse owned or leased by the Company
or any Restricted Subsidiary which has a net book value
exceeding 2.5% of Consolidated Net Tangible Assets, but not
including (1) any property which in the opinion of the
Company is not of material importance to the total business
conducted by the Company as an entirety or (2) any portion of
a particular property which is similarly found not to be of
material importance to the use or operation of such
property."
12. The following is added at the end of Section 1006 of the Original
Indenture as a new subsection (c):
"(c) For purposes of this Section 1006, the giving of a
guarantee which is secured by a lien on a Principal Property
(including shares of capital stock or indebtedness), other
than a Principal Property located outside of the United
States, of a Restricted Subsidiary, and the creation of a
lien on a Principal Property (including shares of capital
stock or indebtedness) of the Company or any Restricted
Subsidiary to secure indebtedness which existed prior to the
creation of such lien, shall be deemed to involve the
creation of indebtedness in an amount equal to, with
duplication, the principal amount secured by such lien."
13. In the second line of Section 1007 of the Original Indenture, the
words "after the date of this Original Indenture" are inserted before the word
"enter."
14. Section 1008 of the Original Indenture is deleted and replaced with
the following:
"Section 1008. Exemption from Limitation on Liens and Sale and
Lease-Back Transactions.
Notwithstanding the provisions of Sections 1006, 1007 and 1009,
the Company or any Restricted Subsidiary may, without equally
and ratably securing the Outstanding Securities, create, incur,
assume or guarantee indebtedness secured by liens and enter into
Sale and Lease-Back Transactions which would otherwise be
restricted by such provisions, provided that at the time such
indebtedness secured by liens is created, incurred, assumed or
guaranteed or such Sale and Lease-Back transaction is entered
into (and after giving effect to the transactions, to the
receipt and
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application of the net proceeds thereof and the retirement of
any indebtedness which is concurrently being retired out of such
proceeds) the sum of the aggregate indebtedness secured by such
liens plus the Attributable Debt of all Sale and Lease-Back
Transactions then outstanding shall not exceed 10% of
Consolidated Net Tangible Assets, as determined in accordance
with the most recent published consolidated balance sheet of the
Company."
15. The Original Indenture is hereby amended by deleting the term
"Xxxxx River Corporation of Virginia" and replacing it with the term "Fort Xxxxx
Corporation" in each place in which such term appears in Exhibits A through G.1
to the Original Indenture. Likewise, the cover page to the Original Indenture
and the reference table listing "Certain Sections of this Indenture relating to
Section 310 through 318 of the Trust Indenture Act of 1939" are hereby amended
by deleting the term "Xxxxx River Corporation of Virginia" and replacing it with
the term "Fort Xxxxx Corporation" in each place in which such term appears.
ARTICLE TWO
1. All terms used in this Supplemental Indenture which are defined in
the Original Indenture and not otherwise defined herein shall have the meanings
assigned to such terms in the Original Indenture.
2. All of the provisions of this Supplemental Indenture shall be deemed
to be incorporated in, and made a part of, the Original Indenture; and the
Original Indenture, as supplemented by this Supplemental Indenture, shall be
read, taken and construed as one and the same instrument and shall be binding
upon all the Holders of Securities of any series originally issued after the
date hereof.
3. This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and same instrument.
4. All covenants and agreements in this Supplemental Indenture by the
Company and the Trustee shall bind their respective successors and assigns,
whether so expressed or not.
5. 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.
6. Nothing in this Supplemental Indenture, express or implied, shall
give any person, other than the parties hereto and their successors hereunder
and the Holders of Securities of any series originally issued after the date
hereof, any benefit or any legal or equitable right, remedy or claim under this
Supplemental Indenture. This Supplemental Indenture only applies to series of
Securities originally issued after the date hereof. Except as expressly
supplemented or amended as set forth in this Supplemental Indenture, the
Original Indenture is hereby ratified and confirmed, and all the terms,
provisions and conditions thereof shall be and continue in full force
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and effect. The Trustee accepts the trusts created by the Original Indenture, as
amended and supplemented by this Supplemental Indenture, and agrees to perform
the same upon the terms and conditions in the Original Indenture as amended and
supplemented by this Supplemental Indenture.
7. This Supplemental Indenture shall be construed and governed by and
in accordance with the laws of the State of New York without regard to its
conflict of laws principles.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date and year first above written.
FORT XXXXX CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxxx, XX
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Name: Xxxxxxxx X. Xxxxxxxx, XX
Title: Sr. Vice President
(Seal)
Attest:
/s/ Xxxxx X. Self
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Name: Xxxxx X. Self
Title: Assistant Corporate Secretary
THE BANK OF NEW YORK
By: /s/ Xxxx XxXxxxxx
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Name: Xxxx XxXxxxxx
Title: Asst. Vice President
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