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EXHIBIT 4(k)
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THE XXXXXXXX COMPANIES, INC.
AND
BANK ONE TRUST COMPANY, N.A.,
as Trustee
Fifth Supplemental Indenture
Dated as of January 17, 2001
To
Indenture
Dated as of November 10, 1997
7.50% Debentures due January 15, 2031
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FIFTH SUPPLEMENTAL INDENTURE, dated as of January 17, 2001
(this "Fifth Supplemental Indenture"), between THE XXXXXXXX COMPANIES, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Issuer"), having its principal office at Xxx Xxxxxxxx Xxxxxx, Xxxxx,
Xxxxxxxx 00000, and BANK ONE TRUST COMPANY, N.A. (successor in interest to THE
FIRST NATIONAL BANK OF CHICAGO), as Trustee (the "Trustee") under the Indenture
dated as of November 10, 1997 between the Issuer and the Trustee (the "Original
Indenture").
Recitals of the Issuer
WHEREAS, the Issuer has executed and delivered the Original
Indenture to the Trustee to provide for the issuance from time to time of its
senior, unsecured notes, debentures or other evidences of indebtedness (the
"Securities"), to be issued in one or more series as in the Original Indenture
provided;
WHEREAS, pursuant to the terms of the Original Indenture, the
Issuer desires to make, execute and deliver to the Trustee this Fifth
Supplemental Indenture to the Original Indenture in order to establish the form
and terms of, and to provide for the creation and issue of a new series of its
Securities designated as the 7.50% Debentures due January 15, 2031 (herein
called the "Debentures"), under the Original Indenture in the aggregate
principal amount of $700,000,000;
WHEREAS, all things necessary to make the Debentures, when
executed by the Issuer and authenticated and delivered by the Trustee and issued
upon the terms and subject to the conditions hereinafter and in the Indenture
set forth, against payment therefor, the valid, binding and legal obligations of
the Issuer and to make this Fifth Supplemental Indenture a valid, binding and
legal agreement of the Issuer, have been done;
Now, Therefore, This Fifth Supplemental Indenture Witnesseth
that for, and in consideration of, the premises and covenants contained in the
Original Indenture and this Fifth Supplemental Indenture and the purchase of the
Debentures by the Holders thereof, it is mutually agreed and covenanted, for the
equal and proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE ONE
DEFINED TERMS
Section 1.1. Defined Terms. Except as otherwise expressly
provided in this Fifth Supplemental Indenture or in the form of Debenture set
forth in Exhibit A hereto or otherwise clearly required by the context hereof or
thereof, all capitalized terms used and not defined herein or in said form of
Debenture that are defined in the Original Indenture shall have the meanings
assigned to them in the Original Indenture. The Original Indenture, as
supplemented from time to time, including by this Fifth Supplemental Indenture,
is hereafter referred to as the "Indenture."
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ARTICLE TWO
TERMS OF THE DEBENTURES
Section 2.1. Establishment of the Debentures. There is hereby
authorized a series of Securities designated the 7.50% Debentures due January
15, 2031, limited in aggregate principal amount to $700,000,000 (except as
provided in Section 2.3(2) of the Indenture). The Issuer may, without the
consent of the Holders of the Debentures, provided that no Event of Default
shall have occurred and be continuing, issue additional Debentures in such
principal amount as shall be determined by or pursuant to a Board Resolution and
having the same ranking and the same interest rate, maturity or other terms as
the Debentures originally issued hereunder, which together with said additional
Debentures shall constitute a single series of Securities under the Indenture.
The Debentures shall be substantially in the form of Debenture set forth in
Exhibit A hereto and shall include substantially the legends set forth on the
face of the form of Debenture.
Section 2.2. Terms of the Debentures. The terms and provisions
of the Debentures as set forth in Exhibit A are hereby incorporated in and
expressly made part of this Fifth Supplemental Indenture.
The Debentures will mature and the principal thereof will be
due and payable, together with all accrued and unpaid interest thereon, on
January 15, 2031.
The Debentures shall bear interest at the rate of 7.50% per
annum.
The amount of interest payable on the Debentures will be
computed on the basis of a 360-day year of twelve 30-day months.
Payment of the principal of (and premium, if any) and interest
on the Debentures will be made at the office or agency of the Issuer 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 the payment of public and private debts and in immediately
available funds; provided, however, that at the option of the Issuer payment of
interest may be made by wire transfer of immediately available funds to an
account of the Person entitled thereto as such account shall be provided to the
Trustee at least 15 days prior to the relevant payment date or by check in New
York Clearinghouse Funds mailed to the address of the person entitled thereto as
such address shall appear in the registry books of the Issuer.
Initially the Debentures will be issued in global form
registered in the name of Cede & Co. (as nominee for The Depository Trust
Company ("DTC"), the initial securities depositary for the Debentures), and may
bear such legends as DTC may reasonably request. So long as the Debentures are
held solely in global form, the Regular Record Date shall be the Business Day
immediately preceding the relevant Interest Payment Date; if the Debentures are
registered in the names of additional Holders, the Issuer shall have the right
to select a Regular Record Date for such Debentures, which shall be at least one
Business Day but not more than 60 Business Days prior to the relevant Interest
Payment Date. So long as the Debentures are
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outstanding in global form registered in the name of DTC or its nominee, all
payments of principal, premium, if any, and interest will be made by the Issuer
in immediately available funds.
No service charge shall be made for the registration of
transfer or exchange of the Debentures; provided, however, that the Issuer may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with the exchange or transfer.
The Debentures shall not be superior in right of payment to,
and shall rank pari passu with, all other unsecured and unsubordinated
Indebtedness of the Issuer.
The Debentures shall be issued in minimum denominations of
$1,000 or any integral multiple of $1,000 over such denomination.
ARTICLE THREE
SUNDRY PROVISIONS
Section 3.1. Execution, Authentication and Delivery of the
Debentures. Debentures in the aggregate principal amount of $700,000,000, or in
such greater principal amount as shall be permitted by Section 2.1, may, upon
execution of this Fifth Supplemental Indenture, or from time to time thereafter,
be executed by the Issuer and delivered to the Trustee for authentication, and
the Trustee shall thereupon authenticate and deliver said Debentures upon a
Issuer Order without any further action by the Issuer.
Section 3.2. Paying Agent and Security Registrar. Bank One
Trust Company, N.A. will be the paying agent and registrar for the Debentures.
Section 3.3. Trustee Not Responsible for Recitals. The
recitals contained in this Fifth Supplemental Indenture shall be taken as the
statements of the Issuer and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Fifth Supplemental Indenture.
Section 3.4. Incorporation of Indenture. The Original
Indenture, as supplemented by this Fifth Supplemental Indenture, is in all
respects ratified and confirmed, and this Fifth Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and therein
provided.
Section 3.5. Governing Law. This Fifth 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.
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Section 3.6. Counterparts. This Fifth 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 counterpartys shall together
constitute one and the same instrument.
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In Witness Whereof, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed as of the day and year first above
written.
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Account Executive
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EXHIBIT A
(FORM OF DEBENTURE)
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