EXHIBIT 99.5
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SUPPLEMENTAL INDENTURE
dated as of October 20, 2003
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with respect to the
SENIOR INDENTURE
Dated as of July 19, 1990
between
THE XXXXXXXX COMPANIES, INC.
and
JPMORGAN CHASE BANK
SUPPLEMENTAL INDENTURE dated as of October 20, 2003 (this "Supplemental
Indenture") between THE XXXXXXXX COMPANIES, INC., a Delaware corporation (the
"Obligor"), and JPMORGAN CHASE BANK (formerly known as Chemical Bank), as
trustee (the "Trustee"), for the securities issued under the Senior Indenture
dated as of July 19, 1990 between the Obligor and the Trustee (as amended,
supplemented or otherwise modified from time to time, the "Indenture").
RECITALS
A. Pursuant to and in accordance with the terms of the Indenture, the
Obligor established and issued its 8.875% Debentures due September 15, 2012, its
10.25% Debentures due July 15, 2020 and its 9.375% Debentures due November 15,
2021 (collectively, the "Debentures").
B. In accordance with Section 8.2 of the Indenture, the Obligor has
obtained the written consent of the holders of the Debentures representing not
less than a majority in aggregate principal amount of the outstanding Debentures
to the amendments to the Indenture set forth in this Supplemental Indenture.
NOW, THEREFORE, in consideration of the premises herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is mutually covenanted and agreed as follows:
AGREEMENTS
Section 1. Defined Terms. Terms defined in the Indenture and not otherwise
defined herein are used herein as therein defined.
Section 2. Amendments to Indenture. Solely with respect to the Debentures,
effective as of the Amendment Effective Date (as defined below):
(a) The following Sections of the Indenture, and any corresponding
provisions in the Securities, hereby are deleted in their entirety and replaced
with "Intentionally Omitted" and all references made thereto throughout the
Indenture and the Securities hereby are deleted in their entirety:
Existing Section Number Caption
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Section 3.6 Limitations on Liens
Section 3.7 Limitation on Sale and Lease-Back
(b) Section 9.1 of the Indenture is amended and restated in its
entirety to read as follows:
"Section 9.1 Issuer May Consolidate, Etc., Only on Certain Terms. The
Issuer shall not consolidate with or merge into any other corporation or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, unless:
[Xxxxxxxx Supplemental Indenture]
(a) the corporation formed by such consolidation or into which the
Issuer is merged or the Person which acquires by conveyance, transfer or
lease the properties and assets of the Issuer substantially as an entirety
shall expressly assume, by a supplemental indenture hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and interest on all the Securities
and Coupons, if any, according to their tenor, and the performance of
every covenant of this Indenture on the part of the Issuer to be performed
or observed;
(b) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, lease or transfer and such supplemental indenture, if any,
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with; and
(c) the Issuer has delivered to the Trustee such other documents as
the Trustee may, in its discretion reasonably require."
(c) Any definitions used exclusively in the provisions of the Indenture
deleted pursuant to Paragraphs (a) or (b) of this Section 2 hereby are deleted
in their entirety from the Indenture.
Section 3. Indenture Ratified. Except as hereby otherwise expressly
provided, the Indenture is in all respects ratified and confirmed, and all the
terms, provisions and conditions thereof shall be and remain in full force and
effect.
Section 4. Counterparts. 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.
Section 5. Supplemental Indenture is a Supplement to Indenture. This
Supplemental Indenture is executed as and shall constitute an indenture
supplemental to the Indenture and shall be construed in connection with and as
part of the Indenture.
Section 6. Governing Law. This Supplemental Indenture shall be deemed to
be 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 7. References to Supplemental Indenture. Any and all notices,
requests, certificates and other instruments executed and delivered after the
execution and delivery of this Supplemental Indenture may refer to the Indenture
without making specific reference to this Supplemental Indenture, but
nevertheless all such references shall include this Supplemental Indenture
unless the context otherwise requires.
Section 8. Effect of This Supplemental Indenture. From and after the
Amendment Effective Date, the Indenture shall be deemed to be modified as herein
provided, but except as
[Xxxxxxxx Supplemental Indenture]
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modified hereby, the Indenture shall continue in full force and effect. The
Indenture as modified hereby shall be read, taken and construed as one and the
same instrument.
Section 9. Severability. In the event that any provisions of 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.
Section 10. Trust Indenture Act. If any provisions hereof limit, qualify
or conflict with any provisions of the Trust Indenture Act of 1939 required
under the Trust Indenture Act of 1939 to be a part of and govern this
Supplemental Indenture, the provisions of the Trust Indenture Act of 1939 shall
control. If any provision hereof modifies or excludes any provision of the Trust
Indenture Act of 1939 that pursuant to the Trust Indenture Act of 1939 may be so
modified or excluded, the provisions of the Trust Indenture Act of 1939 as so
modified or excluded hereby shall apply.
Section 11. Trustee Not Responsible for Recitals. The recitals contained
herein shall be taken as the statements of the Obligor, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Supplemental Indenture.
Section 12. Effectiveness. This Supplemental Indenture shall become
effective upon execution by the Obligor and the Trustee. As used herein, the
"Amendment Effective Date" shall mean the date that the Obligor delivers written
notice to the Trustee and JPMorgan Chase Bank, the Depositary for the
Debentures, that the Debentures tendered and not validly withdrawn pursuant to
the Obligor's Offer to Purchase and Consent Solicitation Statement dated October
8, 2003, as amended, have been accepted for purchase.
[signature page follows]
[Xxxxxxxx Supplemental Indenture]
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Supplemental Indenture to be duly executed on its behalf by its duly authorized
officer as of the day and year first above written.
THE XXXXXXXX COMPANIES, INC.
Attest
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxx
Title: Secretary Title: Treasurer
[Xxxxxxxx Supplemental Indenture]
JPMORGAN CHASE BANK, as Trustee
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Vice President
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[Xxxxxxxx Supplemental Indenture]
