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EXHIBIT 4(j)
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THE XXXXXXXX COMPANIES, INC.
AND
BANK ONE TRUST COMPANY, N.A.,
as Trustee
Fourth Supplemental Indenture
Dated as of January 17, 2000
To
Indenture
Dated as of November 10, 1997
Putable Asset Term Securities ("PATS")
Putable/Callable January 15, 2006
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FOURTH SUPPLEMENTAL INDENTURE, dated as of January 17, 2001
(this "Fourth Supplemental Indenture"), between THE XXXXXXXX COMPANIES, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Issuer"), having its principal office at Xxx Xxxxxxxx Xxxxxx, Xxxxx,
Xxxxxxxx 00000, and BANK ONE TRUST COMPANY, N.A. (successor in interest to THE
FIRST NATIONAL BANK OF CHICAGO), as Trustee (the "Trustee") under the Indenture
dated as of November 10, 1997 between the Issuer and the Trustee (the "Original
Indenture").
Recitals of the Issuer
WHEREAS, the Issuer has executed and delivered the Original
Indenture to the Trustee to provide for the issuance from time to time of its
senior, unsecured debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series as in the Original Indenture
provided;
WHEREAS, pursuant to the terms of the Original Indenture, the
Issuer desires to make, execute and deliver to the Trustee this Fourth
Supplemental Indenture to the Original Indenture in order to establish the form
and terms of, and to provide for the creation and issue of a new series of its
Securities designated as Putable Asset Term Securities, Putable/Callable January
15, 2006 (herein called the "PATS") under the Original Indenture in the
aggregate principal amount of $400,000,000;
WHEREAS, all things necessary to make the PATS, when executed
by the Issuer and authenticated and delivered by the Trustee and issued upon the
terms and subject to the conditions hereinafter and in the Indenture set forth,
against payment therefor, the valid, binding and legal obligations of the Issuer
and to make this Fourth Supplemental Indenture a valid, binding and legal
agreement of the Issuer, have been done;
Now, Therefore, This Fourth Supplemental Indenture Witnesseth
that for, and in consideration of, the premises and covenants contained in the
Original Indenture and this Fourth Supplemental Indenture and the purchase of
the PATS by the Holders thereof, it is mutually agreed and covenanted, for the
equal and proportionate benefit of all Holders of the PATS, as follows:
ARTICLE ONE
DEFINED TERMS
Section 1.1. Defined Terms. Except as otherwise expressly
provided in this Fourth Supplemental Indenture or in the form of PATS set forth
in Exhibit A hereto or otherwise clearly required by the context hereof or
thereof, all capitalized terms used and not defined herein or in said form of
Security that are defined in the Original Indenture shall have the meanings
assigned to them in the Original Indenture. The Original Indenture, as
supplemented from time to time, including by this Fourth Supplemental Indenture,
is hereafter referred to as the "Indenture."
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ARTICLE TWO
TERMS OF THE PATS
Section 2.1. Establishment of the PATS. There is hereby
authorized a series of Securities designated the Putable Asset Term Securities,
Putable/Callable January 15, 2006, limited in aggregate principal amount to
$400,000,000 (except as provided in Section 2.3(2) of the Indenture). The PATS
shall be substantially in the form set forth in Exhibit A hereto and shall
include substantially the legends set forth on the face of the form of PATS.
Section 2.2. Terms of the PATS. The terms and provisions of
the PATS as set forth in Exhibit A are hereby incorporated in and expressly made
part of this Fourth Supplemental Indenture.
The PATS will mature and the principal thereof will be due and
payable, together with all accrued and unpaid interest thereon, on January 15,
2016; provided, however, that this scheduled maturity date may be extended by
the length of the Floating Rate Period, if any, in which case the PATS will
mature not later than January 15, 2017.
The PATS shall bear interest as provided in the form of PATS
set forth in Exhibit A.
The amount of interest payable on the PATS will be computed on
the basis of a 360-day year consisting of twelve 30-day months, except that the
interest accruing during the Floating Rate Period, if any, will be computed on
the basis of the actual number of days in such period over a 360-day year.
Payment of the principal of (and premium, if any) and interest
on the PATS will be made at the office or agency of the Issuer maintained for
that purpose in the Borough of Manhattan, the City and State of New York, in
such coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts and in immediately
available funds; provided, however, that at the option of the Issuer payment of
interest may be made by wire transfer of immediately available funds to an
account of the Person entitled thereto as such account shall be provided to the
Trustee at least 15 days prior to the relevant payment date or by check in New
York Clearinghouse Funds mailed to the address of the person entitled thereto as
such address shall appear in the registry books of the Issuer.
In certain circumstances described in the form of PATS set
forth in Exhibit A hereto, the Trustee will be required, for and on behalf of
the Holders of the PATS, to exercise the option to put the PATS to the Issuer.
The Put Option referred to in the form of PATS attached as Exhibit A hereto
shall be exercised by the Trustee by the delivery by hand or facsimile
transmission of the form of notification attached hereto as Appendix C.
Initially the PATS will be issued in global form registered in
the name of Cede & Co. (as nominee for The Depository Trust Company ("DTC"), the
initial securities depositary for the PATS), and may bear such legends as DTC
may reasonably request. So long as the PATS
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are held solely in global form, the Regular Record Date shall be the Business
Day immediately preceding the relevant Interest Payment Date; if the PATS are
registered in the names of additional Holders, the Issuer shall have the right
to select a Regular Record Date for such PATS, which shall be at least one
Business Day but not more than 60 Business Days prior to the relevant Interest
Payment Date. So long as the PATS are outstanding in global form registered in
the name of DTC or its nominee, all payments of principal (and premium, if any)
and interest will be made by the Issuer in immediately available funds. In case
the Issuer shall be required to repurchase the PATS held by DTC or its nominee,
the Issuer will deliver the required payment amount to the Trustee (which will
effect such payment by book entry through DTC) by 9 a.m. New York time on the
applicable Coupon Reset Date against delivery through DTC of such PATS.
No service charge shall be made for the registration of
transfer or exchange of the PATS; provided, however, that the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with the exchange or transfer.
The PATS shall not be superior in right of payment to, and
shall rank pari passu with, all other unsecured and unsubordinated indebtedness
of the Issuer.
The PATS shall be issued in minimum denominations of $1,000 or
any integral multiple of $1,000 over such denomination.
ARTICLE THREE
SUNDRY PROVISIONS
Section 3.1. Execution, Authentication and Delivery of the
PATS. PATS in the aggregate principal amount of $400,000,000 may, upon execution
of this Fourth Supplemental Indenture, or from time to time thereafter, be
executed by the Issuer and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said PATS upon a Issuer Order
without any further action by the Issuer.
Section 3.2. Assignment of the Call Option. UBS AG, acting
through its London Branch, will acknowledge the assignment by the Issuer of the
Call Option to UBS AG by providing a letter substantially in the form of
Appendix A hereto.
Section 3.3. Calculation Agent. UBS Warburg LLC shall
acknowledge its appointment as Calculation Agent by providing a letter
substantially in the form of Appendix B hereto.
Section 3.4. Paying Agent and Security Registrar. Bank One
Trust Company, N.A. will be the paying agent and registrar for the PATS.
Section 3.5. Supplemental Indenture. The Issuer and the
Trustee shall not enter into any supplemental indenture pursuant to Sections 8.1
and 8.2 of the Original Indenture that
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would modify, amend or eliminate any provision of the PATS that materially
adversely affects the interest of the Callholder or the Calculation Agent
without the prior written consent of the Callholder or the Calculation Agent, as
the case may be.
Section 3.6. Trustee Not Responsible for Recitals. The
recitals contained in this Fourth Supplemental Indenture shall be taken as the
statements of the Issuer and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Fourth Supplemental Indenture.
Section 3.7. Incorporation of Indenture. The Original
Indenture, as supplemented by this Fourth Supplemental Indenture, is in all
respects ratified and confirmed, and this Fourth Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and therein
provided.
Section 3.8. Governing Law. This Fourth Supplemental Indenture
shall be deemed a contract under the laws of the State of New York and for all
purposes shall be construed in accordance with the laws of such State, except as
may otherwise be required by mandatory provisions of law.
Section 3.9. Counterparts. This Fourth 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
one and the same instrument.
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In Witness Whereof, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed as of the day and year first above
written.
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Account Executive
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EXHIBIT A
(FORM OF PATS)
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APPENDIX A
January 17, 2001
Acknowledgment
The Xxxxxxxx Companies, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Bank One Trust Company, N.A.
Xxx Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Reference is made to the Indenture dated as of November 10, 1997, as
supplemented by the Fourth Supplemental Indenture (the "Supplemental Indenture")
dated as of January 17, 2001 (as supplemented, the "Indenture") between The
Xxxxxxxx Companies, Inc., a Delaware corporation, and Bank One Trust Company,
N.A., as Trustee, in connection with the offering of $400,000,000 aggregate
principal amount of 6.75% Putable Asset Term Securities, Putable/Callable
January 15, 2006. Capitalized terms used but not defined herein shall have the
meaning given to such terms in the Indenture.
The undersigned hereby acknowledges the assignment of the Call Option
by the Issuer.
Very truly yours,
UBS AG, acting through its London
Branch
By:
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Name:
Title:
By:
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Name:
Title:
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APPENDIX B
January 17, 2001
Acknowledgment
The Xxxxxxxx Companies, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Bank One Trust Company, N.A.
Xxx Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Reference is made to the Indenture dated as of November 10, 1997, as
supplemented by the Fourth Supplemental Indenture (the "Supplemental Indenture")
dated as of January 17, 2001 (as supplemented, the "Indenture") between The
Xxxxxxxx Companies, Inc., a Delaware corporation, and Bank One Trust Company,
N.A., as Trustee, in connection with the offering of $400,000,000 aggregate
principal amount of 6.75% Putable Asset Term Securities, Putable/Callable
January 15, 2006. Capitalized terms used but not defined herein shall have the
meaning given to such terms in the Indenture.
The undersigned hereby acknowledges its obligations as Calculation
Agent under the Indenture.
Very truly yours,
UBS Warburg LLC
By:
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Name:
Title:
By:
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Name:
Title:
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XXXXXXXX X
[ ], 200[ ]
Form of Put Notice to be Delivered by the Trustee
To the Company Upon Exercise of the Put Option
The Xxxxxxxx Companies, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Treasurer
Bank One Trust Company, N.A., as Trustee for The Xxxxxxxx Companies'
$400,000,000 aggregate principal amount of 6.75% Putable Asset Term Securities
Putable/Callable January 15, 2006, issued under the Indenture dated as of
November 10, 1997, as supplemented by a first supplemental indenture dated as of
September 8, 2000 and a fourth supplemental indenture dated as of January 17,
2001 (the "Fourth Supplemental Indenture") hereby gives notice of the Put Option
(as defined in the Fourth Supplemental Indenture) pursuant to Section 2.2 of the
Fourth Supplemental Indenture.
Bank One Trust Company, N.A.
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Authorized Officer
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