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 banking
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 interests 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
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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"
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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."
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 addition, the words "indebtedness that is secured by a"
are added prior to the word "mortgage" in the third line, and
the words "indebtedness
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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 refer to clause
(xiii), and the reference to "this clause (xiii)" 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) 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 proviso 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, without duplication, the principal amount
secured by such lien."
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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 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
Sections 310 through 318 of the Trust Indenture Act of 1939" are hereby amended
by deleting the term "Xxxxx River Corporation of Virginia" and
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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 and
effect. The Trustee accepts the
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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 day and year first above written.
FORT XXXXX CORPORATION
By: /s/ C. A. XXXXXXXX
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Name: C.A. Xxxxxxxx
Title: Senior Vice President, General
Counsel, Corporate Secretary
(Seal)
Attest:
/s/ XXXXX X. SELF
-------------------------------------
Name: Xxxxx X. Self
Title: Assistant Corporate Secretary
THE BANK OF NEW YORK
By: /s/ XXXX XX XXXXXX
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Name: Xxxx Xx Xxxxxx
Title: Assistant Vice President
(Seal)
Attest:
/s/ XXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Commonwealth of Virginia :
: ss.
City of Richmond :
On the 19th day of September, 1997, before me personally came Xxxxxxxx
X. Xxxxxxxx, XX to me known, who, being by me duly sworn, did depose and say
that he is a Senior Vice President, General Counsel and Corporate Secretary of
Fort Xxxxx Corporation, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
/s/ XXX X. XXXXX
(Notarial Seal) -----------------------------------
