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XXXXX XXXXXX GROUP INC.
to
CHEMICAL BANK
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Senior Debt Securities
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First Supplemental Indenture
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Dated as of September 22, 1989
Supplementing the Indenture
Dated as of March 15, 1988
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FIRST SUPPLEMENTAL INDENTURE dated as of
September 22, 1989, between XXXXX XXXXXX
GROUP INC., a corporation duly organized and
existing under the laws of Delaware (herein
called the "Company"), having its principal
office at 0000 Xxxxxx Xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and Chemical Bank a
corporation duly organized and existing under
the laws of the State of New York, as Trustee
(herein called the "Trustee").
RECITALS
The Company and the Trustee are parties to an
Indenture dated as of March 15, 1988 (the "Indenture")
relating to the issuance from time to time by the Company of
its Securities. Capitalized terms used herein, not other-
wise defined, shall have the same meanings given them in the
Indenture.
The Company has requested the Trustee to join with
it in the execution and delivery of this first supplemental
indenture (the "First Supplemental Indenture") in order to
supplement and amend the Indenture, by amending and adding
certain provisions thereof, to permit the Company to re-
quire, if it shall so elect, that Registered Securities of
any series be issued, in whole or in part, in the form of
one or more Global Securities (as defined herein).
Section 901 of the Indenture provides that a
supplemental indenture may be entered into by the Company
and the Trustee, without the consent of any Holders of the
Securities, to make any provisions with respect to matters
or questions arising under the Indenture, provided such
action shall not adversely affect the interests of the
Holders of Securities of any series in any material respect.
The Company has determined that this First Supple-
mental Indenture complies with said Section 901 and does not
require the consent of any Holders of Securities.
At the request of the Trustee, the Company has
furnished the Trustee with an Opinion of Counsel complying
with the requirements of Section 903 of the Indenture,
stating, among other things, that the execution of this
First Supplemental Indenture is authorized or permitted by
the Indenture, and an Officers' Certificate and Opinion of
Counsel complying with the requirements of Section 102 of
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the Indenture, and has delivered to the Trustee a Board
Resolution as required by Section 901 of the Indenture
authorizing the execution by the Company of this First
Supplemental Indenture and its delivery by the Company to
the Trustee.
All things necessary to make this First Supplemen-
tal Indenture a valid agreement of the Company and the
Trustee, in accordance with the terms of the Indenture, and
a valid amendment of and supplement to the Indenture have
been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually agreed, for the equal and proportionate benefit of
all Holders of the Securities or of series thereof, as
follows:
I. AMENDMENTS TO THE INDENTURE
A. Section 101 of the Indenture is amended (i) to
add new definitions thereto in the appropriate alphabetical
sequence, as follows:
"Depositary" means, unless otherwise specified by
the Company pursuant to either Section 301 or 312, with
respect to the Securities of any series issuable or
issued in whole or in part as one or more Global
Security, The Depository Trust Company, New York, New
York, or any successor thereto registered as a clearing
agency under the Securities and Exchange Act Of 1934,
as amended, and any other applicable statute or regula-
tion.
"Global Security" means, unless otherwise speci-
fied by the Company pursuant to either Section 301 or
312, with respect to any series of Securities issued
hereunder, a Registered Security which is executed by
the Company and authenticated and delivered by the
Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this
Indenture and an indenture supplemental hereto, if any,
or a Board Resolution and pursuant to a Company Order,
which shall be registered in the name of the Depositary
or its nominee and which shall represent, and shall be
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denominated in an amount equal to the aggregate princi-
pal amount of, all the Outstanding Securities of such
series or any portion thereof, in either case having
the same terms, including, without limitation, the same
original issue date, date or dates on which principal
is due, and interest rate or method of determining
interest. The term "global form" or "definitive global
registered form" when used in this Indenture shall
include Global Securities.
and (ii) to delete the word "Fully" from the phrase "Fully
Registered Securities" in the definition of "Regular Record
Date".
B. Section 301 of the Indenture is amended to
(i) add Section 312 to the sections referred to in the
parenthetical exception to subparagraph (2) of the second
paragraph of Section 301, (ii) redesignate subparagraph
(18) as subparagraph (19) and subparagraph (19) as subpara-
graph (20) and (iii) add a new subparagraph (18) which reads
as follows:
"(18) whether the Securities of the series shall
be issued in whole or in part in the form of a Global
Security or Securities; the terms and conditions, if
any, upon which such Global Security or Securities may
be exchanged in whole or in part for other individual
Securities, and the Depositary for such Global Security
or Securities;"
C. Each of the second paragraph and the third
paragraph of Section 305 of the Indenture is amended to add
the words "Subject to Section 312," before the first word cf
the first sentence of such paragraph.
D. A new paragraph is added at the end of
Section 307 of the Indenture, which reads in its entirety as
follows:
"None of the Company, the Trustee, any Paying
Agent, any Authenticating Agent Or the Security Regis-
trar will have any responsibility or liability for any
aspect of the records relating to or payments made on
account of any beneficial ownership interest in a
Global Security or any other Security issued in global
form or for maintaining, supervising or reviewing any
records relating to such beneficial ownership inter-
est."
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E. Article Three of the Indenture is amended to
add a new Section 312, which reads in its entirety as
follows:
"Section 312. Certain Provisions Relating to
Global Securities. If the Company shall establish
pursuant to subparagraph (18) of Section 301 that the
Registered Securities of a particular series are to be
issued in whole or in part in the form of one or more
Global Securities, then the Company shall execute and
the Trustee shall, in accordance with Section 303 and
the Company Order delivered to the Trustee thereunder
with respect to such series, authenticate and deliver
such Global Security or Securities, which (i) shall
represent and shall be denominated in an aggregate
amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented
by such Global Security or Securities, (ii) shall be
registered in the name of the Depositary for such
Global Security or Securities or its nominee,
(iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instruction
and (iv) unless otherwise specified by the Company
pursuant to Section 301, shall bear a legend substan-
tially to the following effect: 'Unless and until it
is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may
not be transferred except 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 or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor
Depositary.'
Notwithstanding any other provision of
Section 203, of Section 305 or of this Section 312,
subject to the provisions of the following paragraph,
unless otherwise specified by the Company pursuant to
Section 301 or unless the terms of a Global Security
expressly permit such Global Security to be exchanged
in whole or in part for individual Securities, a Global
Security may be transferred, in whole but not in part
in the manner provided in Section 305, only to a
nominee of the Depositary for such Global Security, or
to the Depositary, or to a successor Depositary for
such Global Security selected or approved by the
Company, or to a nominee of such successor Depositary.
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If at any time the Depositary for the Global
Securities of a series notifies the Company that it is
unwilling or unable to continue as Depositary for the
Global Securities of such series or if at any time the
Depositary for the Global Securities of such series
shall no longer be eligible or in good standing under
the Securities Exchange Act of 1934, as amended, or any
other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to
such Global Security. If a successor Depositary for
the Global Securities of such series is not appointed
by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligi-
bility, the Company's election pursuant to Section 301
shall no longer be effective with respect to the Global
Securities of such series and the Company will execute,
and the Trustee, upon receipt of a Company Order for
the authentication and delivery of individual Securi-
ties of such series in exchange for the Global Securi-
ties of such series, will authenticate and deliver
individual Securities of such series of like tenor and
terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global
Security or Global Securities of such series in
exchange for such Global Security or Global Securities.
The Company may at any time and in its sole
discretion determine that the Securities of any series
issued or issuable in the form of one or more Global
Securities shall no longer be represented by such
Global Security or Securities. In such event the
Company will execute, and the Trustee, upon receipt of
a Company Request for the authentication and delivery
of individual Securities of such series in exchange in
whole or in part for such Global Security, will authen-
ticate and deliver individual Securities of such series
of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal
amount of such Global Security Or Securities of such
series in exchange for such Global Security or Securi-
ties.
If specified by the Company pursuant to Sec-
tion 301 with respect to a series of Securities issued
or issuable in the form of one or more Global Securi-
ties, the Depositary for any such Global Security may
at its option surrender such Global Security in
exchange in whole or in part for individual Securities
of such series of like tenor and terms in definitive
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form on such terms as are acceptable to the Company and
such Depositary. Thereupon the Company shall execute,
and the Trustee shall authenticate and deliver, without
service charge, (A) to each Person specified by such
Depositary a new Security or Securities of the same
series of like tenor and terms and of any authorized
denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security;
and (B) to such Depositary a new Global Security of
like tenor and terms and in an authorized denomination
equal to the difference, if any, between the principal
amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to
Holders thereof.
In any exchange provided for in any of the preced-
ing three paragraphs, the Company will execute and the
Trustee will authenticate and deliver individual
Securities in definitive registered form in authorized
denominations. Upon the exchange of the entire princi-
pal amount of a Global Security for individual Securi-
ties, such Global Security shall be cancelled by the
Trustee. Securities issued in exchange for a Global
Security pursuant to this Section shall be registered
in such names and in such authorized denominations as
the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or the
Security Registrar. Provided that the Company and the
Trustee or the Security Registrar have so agreed, the
Trustee shall deliver such Registered Securities to the
persons in whose names the Registered Securities are
registered.
Until such time as the Depositary notifies the
Company that it is willing and able to make any elec-
tion on behalf of the Persons with a beneficial inter-
est in a Security entitled to be made by the Holder of
such Security relating to the payment of principal and
interest, Securities denominated in a Foreign Currency
will not be issued in the form of a Global Security.
Notwithstanding the provisions of Section 203 and
of Article XIII, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee,
or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as
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between a Depositary and holders of beneficial inter-
ests in any Global Security, the operation of customary
practices governing the exercise of the rights of the
Depositary as Holder of such Global Security."
II. GENERAL PROVISIONS
A. The recitals contained herein shall be taken
as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of same. The Trustee
makes no representation as to the validity of this First
Supplemental Indenture. The Indenture, as supplemented and
amended by this First Supplemental Indenture, is in all
respects hereby adopted, ratified and confirmed.
B. This instrument 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 the same instrument.
C. This First Supplemental Indenture shall be
governed by and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF the parties hereto have caused
this First Supplemental Indenture to be duly executed, and
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their corporate seals to be hereunto affixed and attested,
all as of the day and year first above written.
XXXXX XXXXXX GROUP INC.
by /s/
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Title: Attorney-in-Fact
(SEAL)
Attest:
/s/ Xxxxxxx Xxxxxxx
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CHEMICAL BANK,
as Trustee
by /s/
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Title: Senior Trust Officer
(SEAL)
Attest:
/s/
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