Exhibit 4.01
FIRST SUPPLEMENTAL INDENTURE (the "Supplemental"), dated
as of April 28, 1997, among Xxxxxx International, Inc., an Indiana
corporation (the "Company"), New Xxxxxx International, Inc., an
Indiana corporation to be renamed Xxxxxx International, Inc.
("New Xxxxxx"), and First Trust National Association, as trustee
(the "Trustee").
W I T N E S S E T H:
WHEREAS, in accordance with Section 901 of the Indenture
relating to the 91/4% Credit Sensitive Debentures due June 1, 2020 of
the Company, dated as of June 1, 1990, between the Company and the
Trustee (the "Indenture"), the Trustee and the Company desire to add
a definition to the Indenture of the phrase "assets and properties as,
or substantially as, an entirety"; and
WHEREAS, pursuant to the Distribution Agreement, dated as
of April 30, 1997, by and between the Company and New Xxxxxx, the Company
is transferring its assets and properties to New Xxxxxx substantially as
an entirety (the "Transfer");
WHEREAS, in accordance with Article Eight of the Indenture,
New Xxxxxx desires to assume the obligations of the Company under the
Indenture upon the Transfer and to succeed to, and be substituted for,
and exercise every right and power of, the Company under the Indenture;
and
WHEREAS, all things necessary to make this Supplemental
Indenture a valid supplement to the terms of the Indenture have been done;
NOW, THEREFORE, the parties hereto agree as set forth below.
Section 1. Amendment to Article Eight. Section 801 of the
Indenture is hereby amended by adding the following sentence at the end
of such Section:
"A conveyance, transfer or lease to any Person by the
Company of its properties and assets constituting not
less than 75% of the book value of the Company's assets
(as reflected on the most recent regularly prepared
consolidated balance sheet of the Company and its
Subsidiaries prior to the date of such conveyance,
transfer or lease) and representing not less than 51%
of the Company's revenues and income from operations
(for the most recently completed fiscal year for which
audited financial statements of the Company and its
Subsidiaries have been prepared prior to the date of
such conveyance, transfer or lease) shall be deemed for
purposes of this Indenture to be a conveyance, transfer
or lease of the Company's properties and assets
substantially as an entirety."
Section 2. Assumption by New Xxxxxx. New Xxxxxx hereby
expressly assumes the due and punctual payment of the principal of and
interest on all of the Securities (as defined in the Indenture) and the
performance of every covenant of the
Indenture on the part of the Company to be performed or observed. New
Xxxxxx hereby succeeds to, is substituted for, and may exercise every
right and power of, the Company under the Indenture with the same effect
as if New Xxxxxx had been named as the Company therein. In accordance
with Section 802 of the Indenture, the Company shall be relieved of all
obligations and covenants under the Indenture and the Securities.
Section 3. Effectiveness. This Supplemental Indenture shall
become effective on the date the Transfer becomes effective and duly
executed counterparts hereof shall have been signed by the Trustee, the
Company and New Xxxxxx.
Section 4. Governing Law. This Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of
Illinois without regard to the conflicts of laws rules thereof.
Section 5. Counterparts. This Supplemental Indenture may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon
the same instrument.
Section 6. Defined Terms. All capitalized terms used but not
defined in this Supplemental Indenture shall have the meanings ascribed
in the Indenture.
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, all as of the date first above
written.
Attest: XXXXXX INTERNATIONAL, INC.
/s/ P. Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. XxXxxxxx
P. Xxxxxxx Xxxxxx Xxxxxx X. XxXxxxxx
Secretary Vice President Finance and Chief
Financial Officer
Attest: NEW XXXXXX INTERNATIONAL, INC.
/s/ P. Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. XxXxxxxx
P. Xxxxxxx Xxxxxx Xxxxxx X. XxXxxxxx
Secretary Vice President Finance and Chief
Financial Officer
Attest: FIRST TRUST NATIONAL ASSOCIATION,
AS TRUSTEE
/s/ Xxxxxxxx Xxxxx By: /s/ X. Xxxxxxxxxx
Xxxxxxxx Xxxxx X. Xxxxxxxxxx
Vice President and Assistant Vice President
Secretary
