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EXHIBIT 4.11
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XXXXX XXXXXX GROUP INC.
and
THE CHASE MANHATTAN BANK
as Trustee
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[ ] SUPPLEMENTAL INDENTURE
Dated as of [ ]
to the
INDENTURE
Dated as of December 9, 1996
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[ ]% Junior Subordinated Debentures
Due [ ]
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TABLE OF CONTENTS
Page
ARTICLE I
General Terms and Conditions of
the Series [ ]% Debentures
SECTION 1.01.............................................................. 3
SECTION 1.02.............................................................. 3
SECTION 1.03.............................................................. 5
ARTICLE II
Optional Redemption of the Series
[ ]% Debentures
SECTION 2.01.............................................................. 6
SECTION 2.02.............................................................. 6
SECTION 2.03.............................................................. 8
ARTICLE III
Extension of Interest Payment Period
SECTION 3.01.............................................................. 9
SECTION 3.02.............................................................. 10
SECTION 3.03.............................................................. 10
ARTICLE IV
Covenants Applicable to Series [ ]% Debentures
SECTION 4.01.............................................................. 11
SECTION 4.02.............................................................. 11
SECTION 4.03.............................................................. 11
SECTION 4.04.............................................................. 12
ARTICLE V
Form of Series [ ]% Debentures
SECTION 5.01.............................................................. 12
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Contents, p. 2
Page
ARTICLE VI
Original Issue of Series [ ]% Debentures
SECTION 6.01............................................................ 25
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01............................................................ 25
SECTION 7.02............................................................ 25
SECTION 7.03............................................................ 25
SECTION 7.04............................................................ 26
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[ ] SUPPLEMENTAL INDENTURE, dated as of [ ]
(this "[ ] Supplemental Indenture"), between XXXXX
XXXXXX GROUP INC., a corporation duly organized and
existing under the laws of the State of Delaware
(hereinafter sometimes referred to as the "Company")
and THE CHASE MANHATTAN BANK, a New York banking
corporation, as trustee (hereinafter sometimes
referred to as the "Trustee") under the Indenture
dated as of December 9, 1996, between the Company and
the Trustee (the "Indenture"); as set forth in
Section 7.01 hereto and except as otherwise set forth
herein, all terms used and not defined herein are
used as defined in the Indenture).
WHEREAS the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of its junior subordinated debentures
(the "Debentures"), said Debentures to be issued from time to time in series as
might be determined by the Company under the Indenture, in an unlimited
aggregate principal amount which may be authenticated and delivered thereunder
as in the Indenture provided;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Debentures to be known
as its [ ]% Junior Subordinated Debentures due [ ] (said series being
hereinafter referred to as the "Series [ ]% Debentures"), the form of such
Series [ ]% Debentures and the terms, provisions and conditions thereof to be as
provided in the Indenture and this [ ] Supplemental Indenture;
WHEREAS the Company has caused to be formed PWG Capital Trust [ ]
(the "Trust") as a business trust under the Business Trust Act of the State of
Delaware (12 Del. Code Sec. 801 et seq.) pursuant to a declaration of trust
dated as of [ ] (the "Original Declaration"), and the filing of a certificate of
trust with the Secretary of State of the State of Delaware on [ ];
WHEREAS the Original Declaration is to be amended and restated in
its entirety pursuant to an Amended and Restated Declaration of Trust dated as
of [ ] (such Amended and Restated Declaration of Trust, as amended from time to
time, the "Declaration of Trust");
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WHEREAS the Trust desires to issue its [ ]% Preferred Trust
Securities (the "Preferred Securities") and sell such Preferred Securities to
initial purchasers;
WHEREAS, in connection with such purchases of Preferred Securities
and the related purchase by the Company of the Common Securities (as defined in
the Declaration of Trust) of the Trust, the Trust will purchase as trust assets
Series [ ]% Debentures;
WHEREAS, pursuant to the Declaration of Trust, the legal title to
the Series [ ]% Debentures shall be held by and in the name of The Chase
Manhattan Bank or its successor under the Declaration of Trust, as Property
Trustee (the "Property Trustee"), in trust for the benefit of holders of the
Preferred Securities and the Common Securities;
WHEREAS, upon (i) the occurrence of a Special Event (as defined in
the Declaration of Trust), the Regular Trustees (as defined in the Declaration
of Trust) of the Trust shall, unless the Series [ ]% Debentures are redeemed as
described herein, dissolve the Trust and cause to be distributed to the holders
of the Preferred Securities and Common Securities, on a pro rata basis
(determined as provided in the terms of the Preferred Securities and Common
Securities attached as Exhibits B and C to the Declaration of Trust), Series [
]% Debentures; (ii) the occurrence of a Voluntary Distribution (as defined in
the Declaration of Trust), the Regular Trustee shall dissolve the Trust and
cause to be distributed to the holders of the Preferred Securities and the
Common Securities, on such pro rata basis, Series [ ]% Debentures; and (iii) in
connection with a Liquidation Distribution (as defined in the Declaration of
Trust), the Regular Trustees may cause to be distributed to holders of Preferred
Securities and Common Securities, on such pro rata basis, Series [ ]% Debentures
(each a "Dissolution Event"); and
WHEREAS the Company desires and has requested the Trustee to join
with it in the execution and delivery of this [ ] Supplemental Indenture, and
all requirements necessary to make this [ ] Supplemental Indenture a valid
instrument, enforceable in accordance with its terms, and to make the Series [
]% Debentures, when executed by the Company and authenticated and delivered by
the Trustee, the valid obligations of the Company, have been performed and
fulfilled, and the
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execution and delivery of this Supplemental Indenture and the Series [ ]%
Debentures have been in all respects duly authorized.
NOW, THEREFORE, in consideration of the purchase and acceptance of
the Series [ ]% Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form of the Series [ ]%
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
General Terms and Conditions of
the Series [ ]% Debentures
SECTION 1.01. There shall be and is hereby authorized a series of
Debentures designated the "[ ]% Junior Subordinated Debentures Due [ ]", limited
in aggregate principal amount to $[ ]. The Series [ ]% Debentures shall mature
and the principal thereof shall be due and payable, together with all accrued
and unpaid interest thereon, including Compounded Interest (as defined below) on
[ ].
SECTION 1.02. (a) Except as provided in Section 1.02(b), the Series
[ ]% Debentures shall be issued in definitive registered certificated form
without interest coupons. Principal and interest on the Series [ ]% Debentures
issued in certificated form will be payable, the transfer of such Series [ ]%
Debentures will be registrable and such Series [ ]% Debentures will be
exchangeable for Series [ ]% Debentures bearing identical terms and provisions
at the office or agency of the Company in the Borough of Manhattan, The City and
State of New York; provided, however, that payment of interest may be made at
the option of the Company by check mailed to the registered holder at such
address as shall appear in the Debenture register and that the payment of
principal with respect to the Series [ ]% Debentures will only be made upon
surrender of the Series [ ]% Debentures to the Trustee. Notwithstanding the
foregoing, so long as the Property Trustee is the record holder of Series [ ]%
Debentures, the payment of the principal of, and interest (including
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Compounded Interest, if any) on, the Series [ ]% Debentures held of record by
the Property Trustee will be made by the Company in immediately available funds
on the payment date therefor to the Property Account (as defined in the
Declaration of Trust) established and maintained by the Property Trustee
pursuant to the Declaration of Trust.
(b) In connection with a Dissolution Event:
(i) Series [ ]% Debentures in certificated form in an
aggregate principal amount equal to the aggregate liquidation amount of
all Preferred Securities held in book-entry form may be presented to
the Trustee by the Property Trustee in exchange for a Global Debenture
representing such Series [ ]% Debentures, such Global Debenture to be
registered in the name of the Depositary, or its nominee, and delivered
by the Trustee to the Depositary pursuant to the instructions of the
Regular Trustees (as defined in the Declaration of Trust) for crediting
to the accounts of the Depositary's participants. The Company, upon any
such presentation, shall execute a Global Debenture representing the
Series [ ]% Debentures in such aggregate principal amount and deliver
the same to the Trustee for authentication and delivery in accordance
with the Indenture and this [ ] Supplemental Indenture. Payments on the
Series [ ]% Debentures issued as a Global Debenture will be made to the
Depositary.
(ii) If any Preferred Securities are held in non book-entry
certificated form ("Non Book-Entry Preferred Securities"), Series [ ]%
Debentures in certificated form in an aggregate principal amount equal
to the aggregate liquidation amount of any such Non Book-Entry
Preferred Securities may be presented to the Trustee by the Property
Trustee, and any Preferred Security Certificate (as defined in the
Declaration of Trust) held in non book-entry certificated form will be
deemed to represent beneficial interests in such Series [ ]% Debentures
presented to the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the Non
Book-Entry Preferred Securities represented by such Preferred Security
Certificate until such Preferred Security Certificate is presented to
the Debenture Registrar for registration of transfer or reissuance, at
which time
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such Preferred Security Certificate will be canceled and a Series [ ]%
Debenture, registered in the name of the holder of such Preferred
Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal
amount equal to the aggregate liquidation amount of the Preferred
Security Certificate canceled will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance
with the Indenture and this [ ] Supplemental Indenture. On issue of
such Series [ ]% Debentures, Series [ ]% Debentures with an equivalent
aggregate principal amount that were presented by the Property Trustee
to the Trustee will be deemed to have been canceled.
SECTION 1.03. Each Series [ ]% Debenture will bear interest at the
rate of [ ]% per annum from [ ] until the principal thereof becomes due and
payable, and on any overdue principal, and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum, compounded quarterly, payable (subject to
the provisions of Article III) quarterly in arrears on the [first] day of each
calendar quarter (each, an "Interest Payment Date", commencing on [ ]), to the
Person in whose name such Series [ ]% Debenture (or one or more Predecessor
Debentures) is registered at the close of business on the regular record date
for such interest installment, which, except as set forth below, shall be, in
respect of any Series [ ]% Debentures represented by a Global Debenture or of
which the Property Trustee is the registered holder, the close of business on
the Business Day next preceding the Interest Payment Date with respect to such
interest installment. Notwithstanding the foregoing sentence, if the Preferred
Securities are no longer in book-entry only form or if, pursuant to the
provisions of Section 2.11(c) of the Indenture, the Series [ ]% Debentures are
no longer represented solely by a Global Debenture, the regular record date for
such interest installment shall be the close of business on the fifteenth day of
[the month immediately preceding] the month in which the Interest Payment Date
with respect to such interest installment occurs. Any installment of interest
not punctually paid or duly provided for shall forthwith cease to be payable to
the registered holder of a Series [ ]% Debenture on such regular record date and
may be paid to the
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Person in whose name such Series [ ]% Debenture (or one or more Predecessor
Debentures) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof to be given to the registered holders of the Series [ ]% Debentures not
less than 10 days prior to such special record date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Series [ ]% Debentures may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
the Indenture.
The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months and for any period shorter
than a 30-day period for which interest is computed, the amount of interest
payable will be computed on the basis of the actual number of days elapsed. In
the event that any date on which interest is payable on the Series [ ]%
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
ARTICLE II
Optional Redemption of the Series
[ ]% Debentures
SECTION 2.01. Except as provided in Section 2.02, Series [ ]%
Debentures may not be redeemed by the Company prior to [ ]. Subject to the terms
of Article III of the Indenture, the Company shall have the right to redeem the
Series [ ]% Debentures, in whole or in part, at any time or from time to time,
on or after [ ], at a redemption price equal to 100% of the principal amount to
be redeemed plus any accrued and unpaid interest thereon, including Compounded
Interest, if any, to the date of such redemption (the "Optional Redemption
Price"). Any redemption pursuant to this Section will be made upon not less than
30 nor more than 60 days' notice.
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SECTION 2.02. If, at any time, a Tax Event (as defined below) shall
occur or be continuing and (i) the Regular Trustees and the Company shall have
received an opinion (a "Redemption Tax Opinion") of nationally recognized
independent tax counsel experienced in such matters that, as a result of such
Tax Event, there is more than an insubstantial risk that the Company would be
precluded from deducting the interest on the Series [ ]% Debentures for United
States Federal income tax purposes even if the Series [ ]% Debentures were
distributed to the holders of Preferred Securities and Common Securities in
liquidation of such holders' interest in the Trust as set forth in the
Declaration of Trust or (ii) the Regular Trustees shall have been informed by
such tax counsel that a No Recognition Opinion (as defined below) cannot be
delivered to the Trust, the Company shall have the right, upon not less than 30
or more than 60 days notice, to redeem the Series [ ]% Debentures in whole or in
part for cash at the Optional Redemption Price within 90 days following the
occurrence of such Tax Event; provided, however, that, if at the time there is
available to the Company or the Regular Trustees, on behalf of the Trust, the
opportunity to eliminate, within such 90-day period, such Tax Event by taking
some ministerial action ("Ministerial Action"), such as filing a form or making
an election, or pursuing some other similar reasonable measure that has no
adverse effect on the Trust, the Company or the holders of the Preferred
Securities, then the Company or the Regular Trustees, on behalf of the Trust,
will pursue such measure in lieu of redemption; and provided further that the
Company shall have no right to redeem the Series [ ]% Debentures while the
Regular Trustees, on behalf of the Trust, are pursuing any such Ministerial
Action.
"Tax Event" means that the Regular Trustees and the Company shall
have obtained an opinion of nationally recognized independent tax counsel
experienced in such matters (a "Dissolution Tax Opinion") to the effect that on
or after [ ] as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to, or change (including any announced prospective
change) in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of
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any legislation and the publication of any judicial decision or regulatory
determination), (c) any interpretation or pronouncement that provides for a
position with respect to such laws or regulations that differs from the
theretofore generally accepted position or (d) any action taken by any
governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or effective or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after March 11, 1997, there is more than an insubstantial risk that (i) the
Trust, is, or will be within 90 days of the date thereof, subject to United
States Federal income tax with respect to income accrued or received on the
Series [ ]% Debentures, (ii) the Trust is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of other taxes, duties or
other governmental charges or (iii) interest payable by the Company to the Trust
on the Series [ ]% Debentures is not, or within 90 days of the date thereof will
not be, deductible by the Company for United States Federal income tax purposes.
"No Recognition Opinion" means an opinion of nationally recognized
independent tax counsel experienced in such matters, which opinion may rely on
any then applicable published revenue rulings of the Internal Revenue Service,
to the effect that the holders of the Preferred Securities will not recognize
any gain or loss for United States Federal income tax purposes as a result of a
dissolution of the Trust and distribution of the Series [ ]% Debentures as
provided in the Declaration of Trust.
SECTION 2.03. If the Series [ ]% Debentures are only partially
redeemed pursuant to this Article II, the Series [ ]% Debentures will be
redeemed pro rata or by lot or by any other equitable method chosen by the
Trustee; provided that if, at the time of redemption, any Series [ ]% Debentures
are represented by a Global Debenture, the Depositary shall determine the
principal amount of such Series [ ]% Debentures held by each Debentureholder to
be redeemed in accordance with its customary procedures. Notwithstanding the
foregoing, if a partial redemption of the Series [ ]% Debentures would result in
the delisting of the Preferred Securities by any national securities exchange on
which the Preferred Securities are then listed, the Company shall not be
permitted to effect such partial redemption and will only redeem the Series [ ]%
Debentures in whole.
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ARTICLE III
Extension of Interest Payment Period
SECTION 3.01. So long as the Company is not in default in the
payment of interest on the Series [ ]% Debentures, the Company shall have the
right, at any time during the term of the Series [ ]% Debentures, from time to
time to extend the interest payment period of the Series [ ]% Debentures for a
period not exceeding 20 consecutive quarterly interest periods (an "Extended
Interest Payment Period"); provided, however, that at the end of any such period
the Company shall pay all interest accrued and unpaid thereon (together with
interest on such accrued and unpaid interest at the rate of [ ]% per annum, to
the extent permitted by applicable law, compounded quarterly ("Compounded
Interest")); and provided, further that an Extended Interest Payment Period may
not extend beyond the maturity of the Series [ ]% Debentures. During any
Extended Interest Payment Period, the Company shall not declare or pay any
dividends on, or redeem, purchase, acquire or make a distribution or liquidation
payment with respect to, any of its common stock or preferred stock or make any
payments on guarantees with respect thereto; provided, however, that the
foregoing restrictions shall not apply to (i) dividends, redemptions, purchases,
acquisitions, distributions or payments made by the Company by way of issuance
of shares of its capital stock, (ii) payments of accrued dividends by the
Company upon the redemption, exchange or conversion of any preferred stock of
the Company as may be outstanding from time to time in accordance with the terms
of such preferred stock or (iii) cash payments made by the Company in lieu of
delivering fractional shares upon the redemption, exchange or conversion of any
preferred stock of the Company as may be outstanding from time to time in
accordance with the terms of such preferred stock. Prior to the termination of
any Extended Interest Payment Period, the Company may pay all or any portion of
the interest accrued on the Series [ ]% Debentures on any Interest Payment Date
to holders of record on the regular record date for such Interest Payment Date
or from time to time further extend such Extended Interest Payment Period;
provided that such Extended Interest Payment Period together with all such
previous and further extensions thereof may not exceed 20 consecutive quarterly
interest periods. Upon the termination of any
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Extended Interest Payment Period and upon the payment of all accrued and unpaid
interest then due, together with Compounded Interest, the Company may select a
new Extended Interest Payment Period. No interest shall be due and payable
during an Extended Interest Payment Period, except at the end thereof. At the
end of any Extended Interest Payment Period, the Company shall pay all interest
accrued and unpaid on the Series [ ]% Debentures, including any Compounded
Interest, to the holders in whose names the Series [ ]% Debentures are
registered on the Debenture Register on the regular record date for the first
Interest Payment Date occurring at or after the end of the Extended Interest
Payment Period.
SECTION 3.02. (a) So long as the Property Trustee is the sole record
holder of the Series [ ]% Debentures, at the time the Company selects an
Extended Interest Payment Period, the Company shall give both the Property
Trustee and the Trustee written notice of its selection of such Extended
Interest Payment Period at least one Business Day prior to the earlier of (i)
the next succeeding date on which distributions on the Preferred Securities are
payable and (ii) the date on which the Trust is required to give notice of the
record or payment date for such distribution to the New York Stock Exchange (if
the Preferred Securities are then listed thereon) or other applicable
self-regulatory organization or to holders of the Preferred Securities, but in
any event not less than one Business Day prior to such record date. The Company
shall cause the Trust to give notice to the holders of the Preferred Securities
of the Company's selection of such Extended Interest Payment Period.
(b) If as a result of a Dissolution Event, Series [ ]% Debentures
have been distributed to holders of Preferred Securities and Common Securities,
at the time the Company selects an Extended Interest Payment Period, the Company
shall give the holders of the Series [ ]% Debentures and the Trustee written
notice of its selection of such Extended Interest Payment Period at least 10
Business Days prior to the earlier of (i) the next succeeding Interest Payment
Date or (ii) the date the Company is required to give notice of the record or
payment date for such interest payment to the New York Stock Exchange (if the
Series [ ]% Debentures are then listed thereon) or other applicable
self-regulatory organization or to holders of the Series [ ]% Debentures.
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SECTION 3.03. The calendar quarter in which any notice is given
pursuant to Section 3.02 shall be counted as one of the 20 consecutive quarterly
interest periods permitted in the maximum Extended Interest Payment Period
permitted under this Article III.
ARTICLE IV
Covenants Applicable to Series [ ]% Debentures
SECTION 4.01. So long as any Preferred Securities remain
outstanding, the Company will not declare or pay any dividends on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect to,
any of its common stock or preferred stock or make any payments on guarantees
with respect thereto if at such time (i) the Company shall be in default with
respect to its Guarantee Payments (as defined in the Guarantee Agreement dated
as of [ ] (the "Guarantee Agreement"), between the Company and The Chase
Manhattan Bank, as Guarantee Trustee) or other payment obligations under the
Guarantee Agreement or (ii) there shall have occurred any Event of Default under
the Indenture with respect to the Series [ ]% Debentures; provided, however,
that the foregoing restrictions shall not apply to (i) dividends, redemptions,
purchases, acquisitions, distributions or payments made by the Company by way of
issuance of shares of its capital stock, (ii) payments of accrued dividends by
the Company upon the redemption, exchange or conversion of any preferred stock
of the Company as may be outstanding from time to time in accordance with the
terms of such preferred stock or (iii) cash payments made by the Company in lieu
of delivering fractional shares upon the redemption, exchange or conversion of
any preferred stock of the Company as may be outstanding from time to time in
accordance with the terms of such preferred stock.
SECTION 4.02. In connection with the distribution of the Series [ ]%
Debentures to the holders of the Preferred Securities upon a Dissolution Event,
the Company will use its best efforts to list such Series [ ]% Debentures on the
New York Stock Exchange or on such other exchange as the Preferred Securities
are then listed.
SECTION 4.03. The Company covenants and agrees for the benefit of
the holders of the Preferred Securities
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to comply fully with all its obligations and agreements under the Declaration of
Trust, including, without limitation, its obligations under Article IV thereof.
SECTION 4.04. Prior to the distribution of Series [ ]% Debentures to
the holders of Preferred Securities upon a Dissolution Event, the Company
covenants and agrees for the benefit of the holders of the Preferred Securities
(i) to remain the sole direct or indirect owner of all Common Securities issued
by the Trust and not to cause or permit the Common Securities to be transferred
except to the extent permitted by the Declaration of Trust; provided that any
permitted successor of the Company under the Indenture may succeed to the
Company's ownership of such Common Securities and (ii) to use reasonable efforts
to cause the Trust to continue to be treated as a grantor trust for United
States Federal income tax purposes, except in connection with a distribution of
the Series [ ]% Debentures as provided in the Declaration of Trust.
ARTICLE V
Form of Series [ ]% Debentures
SECTION 5.01. The Series [ ]% Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially in
the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS A GLOBAL DEBENTURE, INSERT: This Debenture is a
Global Debenture within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee of a Depositary. This
Debenture is exchangeable for Debentures registered in the name of a Person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture 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) may be registered except in such limited
circumstances.
UNLESS THIS GLOBAL DEBENTURE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY
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OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
DEBENTURE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. 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 A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No.: $
CUSIP No.: [ ]
XXXXX XXXXXX GROUP INC.
[ ]% JUNIOR SUBORDINATED DEBENTURE
DUE [ ]
Xxxxx Xxxxxx Group Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein referred to as the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to , or
registered assigns, the principal sum of Dollars on [ ] and to pay
interest on said principal sum from [ ], or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on the [first] day of each calendar quarter commencing [ ],
at the rate of [ ]% per annum, until the principal hereof shall have become due
and payable, and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum, compounded quarterly. The amount of
interest payable for any period will be computed on the basis of a 360-day year
of twelve 30-day months and for any period shorter than a 30-day period for
which interest is computed, the amount of interest payable will be computed on
the basis of the actual number of days elapsed. In the
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event that any date on which interest is payable on this Debenture is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture
referred to on the reverse side hereof, be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on the regular record date for such interest installment, which shall
be the close of business on the Business Day next preceding such Interest
Payment Date; provided, however, that if the Preferred Securities are no longer
in book-entry only form or if, pursuant to the provisions of Section 2.11(c) of
the Indenture, the Series [ ]% Debentures are no longer represented solely by a
Global Debenture, the regular record date shall be the close of business on the
fifteenth day of [the month immediately preceding] the month in which such
Interest Payment Date occurs. Any such interest installment not punctually paid
or duly provided for shall forthwith cease to be payable to the registered
holder of this Debenture on such regular record date, and may be paid to the
Person in whose name this Debenture (or one or more Predecessor Debentures) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof to be given
to the registered holders of this series of Debentures not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Series [ ]% Debentures may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in the Indenture. The
principal of, and the interest on, this Debenture shall be payable at the office
or agency of the Company 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 payment of
public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the registered holder at
such address as shall appear in the Debenture Register and that
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the payment of principal will only be made upon the surrender of this Debenture
to the Trustee. Notwithstanding the foregoing, so long as the record holder of
this Debenture is the Property Trustee (as defined in the Indenture), the
payment of the principal of, and interest on, this Debenture will be made to
such account of the Property Trustee as may be designated by the Property
Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness and will rank pari passu with
the Junior Subordinated Debt Securities issued by the Company and sold to PWG
Capital Trust I on December 9, 1996 [,] [and] the Junior Subordinated Debt
Securities issued by the Company and sold to PWG Capital Trust II on March 14,
1997 [,] [and ], and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact, for any and all such
purposes. Each Debentureholder, by his acceptance hereof hereby waives all
notice of the acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon such
provisions.
Unless the Certificate of Authentication hereon has been executed by
the Trustee referred to on the reverse side hereof, this Debenture shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Date:
XXXXX XXXXXX GROUP INC.,
by __________________________________
Name:
Title:
Attest:
______________________________
Secretary
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described
in the within-mentioned Indenture.
The Chase Manhattan Bank, The Chase Manhattan Bank,
as Trustee, as Trustee,
by ____________________________________
or as Authentication Agent
by _______________________ by ____________________________________
Authorized Officer Authorized Officer
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures of
the Company (herein sometimes referred to as the "Debentures"), all issued or to
be issued in one or more series under and pursuant to an Indenture dated as of
December 9, 1996, duly executed and delivered between the Company and The Chase
Manhattan Bank, a New York banking corporation, as Trustee (herein referred to
as the "Trustee"), as supplemented by the [ ] Supplemental Indenture dated as of
[ ], between the Company and the Trustee (said Indenture as so supplemented
being hereinafter referred to as the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders of the Debentures, and, to the
extent specifically set forth in the Indenture, the holders of Senior
Indebtedness and Preferred Securities. By the terms of the Indenture, the
Debentures are issuable in series which may vary as to amount, date of maturity,
rate of interest and in other respects as in the Indenture
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provided. This series of Debentures is designated the [ ]% Junior Subordinated
Debentures due [ ] (the "Series [ ]% Debentures") and is limited in aggregate
principal amount as specified in said [ ] Supplemental Indenture.
Except as provided in the next paragraph, the Series [ ]% Debentures
may not be redeemed by the Company prior to [ ]. The Company shall have the
right to redeem the Series [ ]% Debentures, in whole or in part, at any time or
from time to time on or after [ ] (an "Optional Redemption"), at a redemption
price equal to 100% of the principal amount to be redeemed plus any accrued and
unpaid interest, including any Compounded Interest, thereon to the date of such
redemption. Any redemption pursuant to this paragraph will be made upon not less
than 30 nor more 60 days notice. If the Debentures are only partially redeemed
by the Company pursuant to an Optional Redemption, the Series [ ]% Debentures
will be redeemed pro rata or by lot or by any other equitable method chosen by
the Trustee; provided that if, at the time of redemption, any Series [ ]%
Debentures are represented by a Global Debenture, the Depository shall determine
the principal amount of such Series [ ]% Debentures held by each holder of
Series [ ]% Debentures to be redeemed in accordance with its customary
procedures.
If, at any time, a Tax Event (as defined below) shall occur or be
continuing and, (i) the Regular Trustees and the Company shall have received an
opinion (a "Redemption Tax Opinion") of nationally recognized independent tax
counsel experienced in such matters that, as a result of such Tax Event, there
is more than an insubstantial risk that the Company would be precluded from
deducting the interest on the Series [ ]% Debentures for United States Federal
income tax purposes even if the Series [ ]% Debentures were distributed to the
holders of Preferred Securities and Common Securities in liquidation of such
holders' interest in the Trust as set forth in the Declaration of Trust or (ii)
the Regular Trustees shall have been informed by such tax counsel that No
Recognition Opinion (as defined below) cannot be delivered to the Trust, the
Company shall have the right, upon not less than 30 or more than 60 days notice,
to redeem the Series [ ]% Debentures in whole or in part for cash at the
Optional Redemption Price within 90 days following the occurrence of such Tax
Event; provided, however, that, if at the time
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there is available to the Company or the Regular Trustees, on behalf of the
Trust, the opportunity to eliminate, within such 90-day period, such Tax Event
by taking some ministerial action ("Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar reasonable measure which
has no adverse effect on the Trust, the Company or the holders of the Preferred
Securities, the Company or the Regular Trustees, on behalf of the Trust, will
pursue such measure in lieu of redemption; and provided further that the Company
shall have no right to redeem the Series [ ]% Debentures while the Regular
Trustees, on behalf of the Trust, are pursuing any such Ministerial Action.
"Tax Event" means that the Regular Trustees and the Company shall
have obtained an opinion of nationally recognized independent tax counsel
experienced in such matters (a "Dissolution Tax Opinion") to the effect that on
or after [ ] as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to, or change (including any announced prospective
change) in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination), (c) any interpretation or pronouncement
that provides for a position with respect to such laws or regulations that
differs from the theretofore generally accepted position or (d) any action taken
by any governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or effective or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after [ ], there is more than an insubstantial risk that (i) the Trust is, or
will be within 90 days of the date thereof, subject to United States Federal
income tax with respect to income accrued or received on the Series [ ]%
Debentures, (ii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges or (iii) interest payable by the Company to the Trust on
the Series [ ]% Debentures is not, or within 90 days of the date thereof will
not be, deductible by the Company for United States Federal income tax purposes.
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"No Recognition Opinion" means an opinion of nationally recognized
independent tax counsel experienced in such matters, which opinion may rely on
any then applicable published revenue rulings of the Internal Revenue Service,
to the effect that the holders of the Preferred Securities will not recognize
any gain or loss for United States Federal income tax purposes as a result of a
dissolution of the Trust and distribution of the Series 8.08% Debentures as
provided in the Declaration of Trust.
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption or as a result of a Tax Event as described
above, the Debentures will be redeemed pro rata or by lot or by any other
equitable method chosen by the Trustee. Notwithstanding the foregoing, if a
partial redemption of the Series [ ]% Debentures would result in the delisting
of the Preferred Securities by any national securities exchange on which the
Preferred Securities are then listed, the Company shall not be permitted to
effect such partial redemption and will only redeem the Series [ ]% Debentures
in whole.
In the event of redemption of this Debenture in part only, a new
Series [ ]% Debenture or Debentures will be issued for the unredeemed portion
hereof in the name of the holder hereof upon the cancelation of this Debenture.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Series [ ]% Debentures
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of the Series [ ]% Debentures upon compliance by the Company
with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
outstanding, as defined in Section 8.04 of the Indenture, (and, in the case of
any series of Debentures held as trust assets of a PWG Capital Trust and with
respect to which a Security Exchange has not theretofore occurred, such consent
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21
of holders of the Preferred Securities and the Common Securities of such PWG
Capital Trust as may be required under the Declaration of Trust of such PWG
Capital Trust), to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of any series of Debentures; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the holder of each
Debenture so affected or (ii) reduce the aforesaid percentage of Debentures, the
holders of which are required to consent to any such supplemental indenture,
without the consent of the holders of each Debenture (and, in the case of any
series of Debentures held as trust assets of a PWG Capital Trust and with
respect to which a Security Exchange has not theretofore occurred, such consent
of the holders of the Preferred Securities and the Common Securities of such PWG
Capital Trust as may be required under the Declaration of Trust of such PWG
Capital Trust) then outstanding and affected thereby. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Debentures of a series at the time outstanding affected thereby
(subject, in the case of any series of Debentures held as trust assets of a PWG
Capital Trust and with respect to which a Security Exchange has not theretofore
occurred, to such consent of holders of Preferred Securities and Common
Securities of such PWG Capital Trust as may be required under the Declaration of
Trust of such PWG Capital Trust), on behalf of the holders of the Debentures of
such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture
with respect to such series and its consequences, except a default in the
payment of the principal of, or premium, if any, or interest on, any of the
Debentures of such series. Any such consent or waiver by the registered holder
of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Debenture and of any Debenture issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise),
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irrespective of whether or not any notation of such consent or waiver is made
upon this Debenture.
Subject to Section 13.11 of the Indenture, no reference herein to
the Indenture (other than such Section) and no provision of this Debenture or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place, at the rate and in the money
herein prescribed.
So long as the Company is not in default in the payment of interest
on the Series [ ]% Debentures, the Company shall have the right, at any time
during the term of the Series [ ]% Debentures, from time to time to extend the
interest payment period of the Series [ ]% Debentures for a period not exceeding
20 consecutive quarterly interest periods (an "Extended Interest Payment
Period"); provided, however, that at the end of any such period the Company
shall pay all interest accrued and unpaid thereon, together with any Compounded
Interest; and provided, further that an Extended Interest Payment Period may not
extend beyond the maturity of the Series [ ]% Debentures. During any Extended
Interest Payment Period, the Company shall not declare or pay any dividends on,
or redeem, purchase, acquire or make a distribution or liquidation payment with
respect to, any of its common stock or preferred stock, or make any payments on
guarantees with respect thereto; provided, however, that the foregoing
restrictions shall not apply to (i) dividends, redemptions, purchases,
acquisitions, distributions or payments made by the Company by way of issuance
of shares of its capital stock, (ii) payments of accrued dividends by the
Company upon the redemption, exchange or conversion of any preferred stock of
the Company as may be outstanding from time to time in accordance with the terms
of such preferred stock or (iii) cash payments made by the Company in lieu of
delivering fractional shares upon the redemption, exchange or conversion of any
preferred stock of the Company as may be outstanding from time to time in
accordance with the terms of such preferred stock. Prior to the termination of
any Extended Interest Payment Period, the Company may pay all or any portion of
the interest accrued on the Series [ ]% Debentures on any Interest Payment Date
to holders of record on the regular record date for such Interest Payment Date
or from time to time further extend such Extended Interest Payment Period;
provided that such Extended
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Interest Payment Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarterly interest periods. Upon the
termination of any Extended Interest Payment Period and upon the payment of all
accrued and unpaid interest then due, together with Compounded Interest, the
Company may select a new Extended Interest Payment Period. No interest shall be
due and payable during an Extended Interest Payment Period, except at the end
thereof. At the end of any Extended Interest Payment Period, the Company shall
pay all interest accrued and unpaid on the Series [ ]% Debentures, including any
Compounded Interest which shall be payable to the holders in whose names the
Series [ ]% Debentures are registered on the Debenture Register on the regular
record date for the first Interest Payment Date occurring on or after the end of
the Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debenture Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Company
designated for such purpose in the Borough of Manhattan, The City and State of
New York, accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Debenture Registrar duly executed by the
registered holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Series [ ]% Debentures of authorized denominations and
for the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Debenture
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any
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paying agent nor any Debenture Registrar shall be affected by any notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement of
the Indenture, or of this Debenture, or for any claim based thereon or hereon,
or otherwise in respect thereof or hereof shall be had against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Debenture and the obligations represented hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or is
or shall be incurred by, the incorporators, stockholders, officers or directors,
as such, of the Company or of any predecessor or successor corporation, or any
of them, because of the creation of this indebtedness, or under or by reason of
the obligations covenants or agreements contained in the Indenture or this
Debenture or implied therefrom; and that any and all such personal liability of
every name and nature, either at common law or in equity or by constitution or
statute, and any and all such rights and claims against every such incorporator,
stockholder, officer or director, as such, because of the creation of this
indebtedness, or under or by reason of the obligations, covenants or agreements
contained in the Indenture or in this Debenture or implied therefrom, are hereby
expressly waived and released by the acceptance hereof and as a condition of,
and as a consideration for, the execution of the Indenture and the issuance of
this Debenture.
[IF THE DEBENTURE IS A GLOBAL DEBENTURE INSERT: This Global
Debenture is exchangeable for Debentures in definitive form under certain
limited circumstances set forth in the Indenture.]
The Series [ ]% Debentures are issuable only in registered form
without interest coupons in denominations of $25 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations [IF THE
DEBENTURE IS A GLOBAL DEBENTURE, INSERT: herein and] therein set forth, Series
[ ]% Debentures are exchangeable for a like aggregate principal amount of Series
[ ]% Debentures
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of a different authorized denomination, as requested by the holder surrendering
the same.
Terms used and not defined in this Debenture shall have the meanings
assigned to them in the Indenture.
ARTICLE VI
Original Issue of Series [ ]% Debentures
SECTION 6.01. Series [ ]% Debentures in the aggregate principal
amount equal to $[ ], may, upon execution of this [ ] Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and make available for delivery said Series
[ ]% Debentures to or upon the written order of the Company, signed by its
Chairman of the Board, its Vice-Chairman of the Board, its President or any Vice
President and by its Treasurer or any Assistant Treasurer or its Controller or
any Assistant Controller or its Secretary or any Assistant Secretary, without
any further action by the Company.
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Except as otherwise expressly provided in this [ ]
Supplemental Indenture or in the form of Series [ ]% Debenture or otherwise
clearly required by the context hereof or thereof, all terms used herein or in
said form of Series [ ]% Debenture that are defined in the Indenture shall have
the several meanings respectively assigned to them thereby.
SECTION 7.02. The Indenture, as supplemented by this [ ]
Supplemental Indenture, is in all respects ratified and confirmed. This [ ]
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 7.03. The recitals herein contained are made by the Company
and not by the Trustee, and the Trustee
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assumes no responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this [ ] Supplemental
Indenture.
SECTION 7.04. 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.
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, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
XXXXX XXXXXX GROUP INC.,
by __________________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
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THE CHASE MANHATTAN BANK, as
Trustee,
by __________________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
