EXHIBIT 4(b)
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SUPPLEMENTAL INDENTURE NO. 1
BETWEEN
▇▇▇▇▇▇▇▇'▇ CORPORATION
AND
FIRST UNION NATIONAL BANK
TRUSTEE
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DATED AS OF NOVEMBER 5, 1996
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SUPPLEMENTAL TO SUBORDINATED DEBT SECURITIES INDENTURE
DATED AS OF OCTOBER 18, 1996
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▇▇▇▇▇▇▇▇'▇ CORPORATION
SUPPLEMENTAL INDENTURE NO. 1
DATED AS OF NOVEMBER 5, 1996
SERIES OF 7 1/2% SUBORDINATED DEFERRABLE INTEREST DEBENTURES DUE 2036
$200,000,000
Supplemental Indenture No. 1, dated as of November 5, 1996, between
▇▇▇▇▇▇▇▇'▇ CORPORATION, a corporation organized and existing under the laws of
the State of Delaware (hereinafter sometimes referred to as the "Company"), and
FIRST UNION NATIONAL BANK, a national banking association, authorized to accept
and execute trusts (hereinafter sometimes referred to as the "Trustee"),
W I T N E S S E T H :
WHEREAS, The Company and the Trustee have executed and delivered a
Subordinated Debt Securities Indenture dated as of October 18, 1996 (the
"Indenture").
WHEREAS, Section 10.01 of the Indenture provides for the Company, when
authorized by the Board of Directors, and the Trustee to enter into an indenture
supplemental to the Indenture to establish the form or terms of any series of
Debt Securities as permitted by Sections 2.01 and 2.02 of the Indenture.
WHEREAS, Sections 2.01 and 2.02 of the Indenture provide for Debt
Securities of any series to be established pursuant to an indenture supplemental
to the Indenture.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the series of
Debt Securities provided for herein, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of such series of Debt
Securities, as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS.
SECTION 1.01. This Supplemental Indenture No. 1 constitutes an integral
part of the Indenture.
SECTION 1.02. For all purposes of this Supplemental Indenture:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture No. 1; and
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(3) The terms "hereof", "herein", "hereto", "hereunder" and "herewith"
refer to this Supplemental Indenture.
ARTICLE TWO
THE SERIES OF DEBT SECURITIES.
SECTION 2.01. There shall be a series of Debt Securities designated the "7
1/2% Subordinated Deferrable Interest Debentures due 2036" (the "Debentures").
The Debentures shall be limited to $200,000,000 aggregate principal amount.
SECTION 2.02. The principal amount of the Debentures shall be payable on
September 30, 2036.
SECTION 2.03. The Debentures will be represented by a global security (the
"Global Security"). The Global Security will be executed by the Company,
authenticated by the Trustee and deposited with, or on behalf of, The Depository
Trust Company (the "Depositary") and registered in the name of a nominee of the
Depositary. Except under circumstances described below, the Debentures will not
be issuable in definitive form.
Ownership of beneficial interests in the Global Security will be limited to
persons that have accounts with the Depositary or its nominee ("participants")
or persons that may hold interests through participants. Ownership of a
beneficial interest in the Global Security will be shown on, and the transfer of
that beneficial interest will only be effected through, records maintained by
the Depositary or its nominee (with respect to interests of participants) and on
the records of participants (with respect to interests of persons other than
participants).
So long as the Depositary or its nominee is the registered owner of the
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner or Holder of the Debentures represented by the Global
Security for all purposes under the Indenture. Except as provided below, owners
of beneficial interests in the Global Security will not be entitled to have
Debentures represented by the Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Debentures in
definitive form and will not be considered the owners or Holders thereof under
the Indenture.
Principal and interest payments on Debentures represented by the Global
Security registered in the name of the Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the registered owner of
the Global Security.
If the Depositary notifies the Company that it is at any time unwilling or
unable to continue as Depositary or if at any time the Depositary shall no
longer be eligible to continue as Depositary, the Company shall appoint a
successor Depositary with respect to the Debentures. If a successor Depositary
for the Debentures is not appointed by the Company within 90 days from the date
the Company receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee will authenticate and deliver, Debentures
in definitive form in exchange for the entire Global Security. In addition, the
Company may at any time and
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in its sole discretion determine not to have the Debentures represented by the
Global Security and, in such event, the Company will execute, and the Trustee
will authenticate and deliver, Debentures in definitive form in exchange for the
entire Global Security. In any such instance, an owner of a beneficial interest
in the Global Security will be entitled to physical delivery in definitive form
of Debentures represented by the Global Security equal in principal amount to
such beneficial interest and to have such Debentures registered in its name.
Debentures so issued in definitive form will be issued as registered Debentures
in denominations of $25 and integral multiples thereof, unless otherwise
specified by the Company.
Upon the exchange of a Global Security for individual Debentures, such
Global Security shall be cancelled by the Trustee. Individual Debentures issued
in exchange for a Global Security 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. The Trustee shall deliver such Debentures to, or in
accordance with the instructions of the persons in whose name such Debentures
are so registered.
Unless and until it is exchanged in whole or in part for the individual
Debentures represented thereby, a Global Security representing all or a portion
of the Debentures may not be transferred except as a whole by the Depositary for
the Debentures to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any such nominee to a successor Depositary for the Debentures or a
nominee of such successor Depositary.
SECTION 2.04. The Debentures shall bear interest at the rate of 7 1/2% per
annum, payable quarterly, in arrears, on March 31, June 30, September 30 and
December 31 of each year (each, an "Interest Payment Date"), commencing December
31, 1996. The Debentures shall be dated the date of authentication and interest
shall be payable on the principal represented thereby from the later of November
5, 1996, or the most recent Interest Payment Date to which interest has been
paid or duly provided for. If any date on which interest is payable is not a
business day, the payment of interest due on such date may be made on the next
succeeding business day (and without any interest or other payment in respect of
such delay).
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Holder in whose name any Debenture is
registered in the Debt Security register at the close of business on the March
15, June 15, September 15 or December 15 (whether or not a business day) next
preceding such Interest Payment Date (each, a "Regular Record Date").
The Company shall have the right upon prior notice by public announcement
given in accordance with New York Stock Exchange rules or the rules of any other
applicable self-regulatory organization, at any time during the term of the
Debentures, prior to an Interest Payment Date, so long as the Company is not in
default in the payment of interest on the Debentures, to extend the interest
payment period for an Extension Period (as defined below). Except as provided in
the next succeeding sentence, no interest shall be due and payable during an
Extension Period, but on the Interest Payment Date occurring at the end of each
Extension
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Period the Company shall pay to the Holders of record on the Record Date for
such Interest Payment Date (regardless of who the Holders of record may have
been on other dates during the Extension Period) all interest then accrued but
unpaid on the Debentures, together with interest thereon, compounded quarterly,
at the rate of 7 1/2% per annum, to the extent permitted by law; provided that
during any such Extension Period, the Company shall not declare or pay any
dividend on, or repurchase, redeem or otherwise acquire any of its capital
stock. Prior to the termination of any Extension Period, the Company may (a) on
any Interest Payment Date pay all or any portion of the interest accrued on the
Debentures as provided herein to Holders of record on the Regular Record Date
for such Interest Payment Date or (b) from time to time further extend the
interest payment period as provided in the last sentence of this paragraph,
provided that any such Extension Period, together with all such previous and
further extensions thereof, may not exceed 20 consecutive quarterly interest
payment periods from the last date to which interest on the Debentures was paid
in full. If the Company shall elect to pay all of the interest accrued on the
Debentures on an Interest Payment Date during an Extension Period, such
Extension Period shall automatically terminate on such Interest Payment Date.
Upon the termination of any Extension Period and the payment of all amounts of
interest then due, the Company may commence a new Extension Period, subject to
the above requirements. The Company shall cause the Trustee to give notice to
the Holders in the manner provided in the Indenture, not less than five business
days prior to the earlier of (i) the March 15, June 15, September 15 or December
15 next preceding the applicable Interest Payment Date and (ii) the date on
which the Company or the Trustee is required to give notice to the New York
Stock Exchange or other applicable self-regulatory organization of the Regular
Record Date and the payment date for such related interest payment period, of
(x) the Company's election to initiate an Extension Period and the
duration thereof,
(y) the Company's election to extend any Extension Period beyond the
Interest Payment Date on which such Extension Period is then scheduled to
terminate, and the duration of such extension, and
(z) the Company's election to make a full or partial payment of
interest accrued on the Debentures of any Interest Payment Date during any
Extension Period and the amount of such payment.
The term "Extension Period" means the period from and including the
Interest Payment Date next following the date of any notice of extension of the
interest payment period on the Debentures given pursuant to the last sentence of
the preceding paragraph (or, in the case of any further extension of the
interest payment period pursuant to the third sentence of the preceding
paragraph before the payment in full of all accrued but unpaid interest on the
Debentures, the Interest Payment Date to which interest was paid in full) to but
excluding the Interest Payment Date to which payment of interest on the
Debentures is so extended, after giving affect to any further extensions of the
interest payment period on the Debentures pursuant to the third sentence of the
preceding paragraph; provided that no Extension Period shall exceed 20
consecutive quarterly interest payment periods from the last date to which
interest on the Debentures was paid in full; and provided, further, that any
Extension Period shall end on an Interest Payment Date. Notwithstanding the
foregoing, in no event shall any Extension Period exceed September 30, 2036.
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Any interest on any Debenture which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) and Clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Debentures are registered at the close of business on
a Special Record Date (as defined below) for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Debenture and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Section
provided. Thereupon the Trustee shall fix a Special Record Date ("Special Record
Date") for the payment of such Defaulted Interest which shall be not more than
15 nor less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefore to be mailed, first class postage prepaid, to each Holder of
Debentures at his address as it appears in the Debt Security register, not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an authorized newspaper in each Place of
Payment, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Debentures are registered on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Debentures may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
The Company covenants and agrees that, if at any time it has failed to make
any payment of interest or principal on the Debentures when due (after giving
effect to any grace period for payment thereof as provided in Section 6.01 of
the Indenture), or the Company exercises its option to extend the interest
payment period as provided for above, the Company will not, until all Defaulted
Interest or accrued but unpaid interest, if the Company exercises its option to
extend the interest payment period on the Debentures and all principal, if any,
then due and payable on the Debentures shall have been paid in full, (a)
declare, set aside, or pay any dividend or distribution on any capital stock of
the Company (except for dividends or distributions in shares of
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its capital stock or rights to acquire shares of its capital stock); or (b)
repurchase, redeem, or otherwise acquire any shares of its capital stock
(except: (i) by conversion into or exchange for shares of its capital stock; or
(ii) for a redemption, purchase or other acquisition of shares of its capital
stock made for the purpose of any employee incentive plan or benefit plan of the
Company or any of its affiliates).
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Supplemental Indenture No. 1 upon transfer of or in
exchange for or in lieu of any other Debenture shall carry the rights to
interest accrued but unpaid, and to accrue, which were carried by such other
Debenture.
SECTION 2.05. The Place of Payment for the Debentures shall be both the
City of New York, New York, and the City of Charlotte, North Carolina. The
Trustee shall be the paying agent for the Debentures.
SECTION 2.06. The Debentures may, at the option of the Company, be
redeemed in whole or from time to time in part, upon notice as provided in
Section 3.02 of the Indenture, at any time on or after December 31, 2001, or at
any time upon the occurrence of a Tax Event, at a redemption price equal to 100%
of the principal amount of the Debentures redeemed, together with accrued but
unpaid interest to the date of redemption.
"Tax Event" means that the Company shall have received an opinion of
independent tax counsel (a "Tax Opinion") to the effect that, as a result of (a)
any amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein or (b) any amendment to or
change in an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority (including
the enactment of any legislation and the publication of any judicial decision or
regulatory determination on or after October 31, 1996), in either case on or
after October 31, 1996, there is more than an insubstantial risk that interest
payable on the Debentures would not be deductible, in whole or in part, by the
Company for United States federal income tax purposes.
SECTION 2.07. The Debentures may be issued in denominations of $25 and any
integral multiples thereof.
SECTION 2.08. The Debentures shall be in the form attached as Exhibit A
hereto.
ARTICLE THREE
MISCELLANEOUS.
SECTION 3.01. The recitals of fact herein and in the Debentures shall be
taken as statements of the Company and shall not be construed as made by the
Trustee.
SECTION 3.02. This Supplemental Indenture No. 1 shall be construed in
connection with and as a part of the Indenture.
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SECTION 3.03. (a) If any provision of this Supplemental Indenture No. 1
limits, qualifies, or conflicts with another provision of the Indenture required
to be included in indentures qualified under the Trust Indenture Act of 1939 (as
in effect on the date of this Supplemental Indenture No. 1) by any of the
provisions of Sections 310 to 317, inclusive, of said Trust Indenture Act, such
required provisions shall control.
(b) In case any one or more of the provisions contained in this
Supplemental Indenture No. 1 or in the Debentures issued hereunder should be
invalid, illegal, or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected, impaired, prejudiced or disturbed thereby.
SECTION 3.04. Whenever in this Supplemental Indenture No. 1 either of the
parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Supplemental Indenture No. 1 contained by or on behalf of the Company or by
or on behalf of the Trustee shall bind and inure to the benefit of the
respective successors and assigns of such parties, whether so expressed or not.
SECTION 3.05. (a) This Supplemental Indenture No. 1 may be simultaneously
executed in several counterparts, and all said counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
(b) The descriptive headings of the several Articles of this Supplemental
Indenture No. 1 were formulated, used and inserted in this Supplemental
Indenture No. 1 for convenience only and shall not be deemed to affect the
meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇'▇ CORPORATION has caused this Supplemental
Indenture No. 1 to be signed, acknowledged and delivered by its President,
Executive Vice President and Chief Financial Officer or Senior Vice President
and Treasurer and its corporate seal to be affixed hereunto and the same to be
attested by its Secretary or Assistant Secretary, and FIRST UNION NATIONAL BANK,
as Trustee, has caused this Supplemental Indenture No. 1 to be signed,
acknowledged and delivered by one of its Vice Presidents, and its seal to be
affixed hereunto and the same to be attested by one of its Authorized Officers,
all as of the day and year first written above.
▇▇▇▇▇▇▇▇'▇ CORPORATION
[CORPORATE SEAL]
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Senior Vice President and Treasurer
Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Secretary
FIRST UNION NATIONAL BANK, as Trustee
[CORPORATE SEAL]
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Vice President
Attest:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Authorized Officer
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STATE OF ILLINOIS
SS:
COUNTY OF DuPAGE
On the 5th day of November, in the year one thousand nine hundred ninety
six, before me appeared ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to me personally known, who being by
me duly sworn, did say that he resides at ▇▇▇▇▇▇▇▇'▇ Corporation, that he is
Senior Vice President and Treasurer of ▇▇▇▇▇▇▇▇'▇ CORPORATION, one of the
corporations described in and which executed the above 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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Notary Public
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF PHILADELPHIA
On the 4th day of November, in the year one thousand nine hundred ninety
six, before me appeared ▇▇▇▇ ▇▇▇▇▇▇▇ to me personally known, who, being by me
duly sworn, did say that he resides at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇, that he is
Vice President of FIRST UNION NATIONAL BANK, one of the corporations described
in and which executed the above 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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Notary Public
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