1
EXHIBIT 4.3
FIRST SUPPLEMENTAL INDENTURE
between
XXXXXX XXXXXXX CORPORATION
and
XXXXXX TRUST AND SAVINGS BANK
Dated as of _________, _________
2
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms........................................2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount...........................5
SECTION 2.2. Maturity...................................................5
SECTION 2.3. Form and Payment...........................................6
SECTION 2.4. Global Debenture...........................................6
SECTION 2.5. Interest...................................................7
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event Redemption.......................................9
SECTION 3.2. Investment Company Event of Redemption....................10
SECTION 3.3. Optional Redemption by Company............................10
SECTION 3.4. No Sinking Fund...........................................10
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period......................10
SECTION 4.2. Notice of Extension.......................................11
ARTICLE V
FORM OF DEBENTURE
SECTION 5.1. Form of Debenture.........................................12
ARTICLE VI
ORIGINAL ISSUE OF DEBENTURES
SECTION 6.1. Original Issue of Debentures..............................12
ARTICLE VII
COVENANTS
i
3
Page
----
SECTION 7.1. Limitation on Dividends...................................12
SECTION 7.2. Covenants as to the Trust.................................13
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Ratification of Indenture.................................14
SECTION 8.2. Acknowledgment of Rights..................................14
SECTION 8.3. Direction of Proceedings and Waiver
of Defaults by Majority of Holders........................14
SECTION 8.4. Trustee Not Responsible for Recitals......................16
SECTION 8.5. Governing Law.............................................16
SECTION 8.6. Separability..............................................16
SECTION 8.7. Counterparts..............................................16
ii
4
FIRST SUPPLEMENTAL INDENTURE, dated as of ___________, ________
(the "First Supplemental Indenture") between Xxxxxx Xxxxxxx Corporation, a New
York corporation (the "Company"), and Xxxxxx Trust and Savings Bank, as trustee
(the "Trustee"), under the Indenture dated as of __________, 1998 between the
Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured
subordinated debentures to be issued from time to time in one or more series as
might be determined by the Company under the Indenture, in an unlimited
aggregate principal amount which may be authenticated and delivered as provided
in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its junior subordinated
deferrable interest debentures to be known as its ___% Junior Subordinated
Deferrable Interest Debentures, Series I (the "Debentures"), the form and
substance of such Debentures and the terms, provisions and conditions thereof to
be set forth as provided in the Indenture and this _____ Supplemental Indenture;
WHEREAS, FW Preferred Capital Trust I, a Delaware statutory business
trust (the "Trust"), has offered to the public $_________ aggregate liquidation
amount of its % Preferred Securities, Series I (the "Preferred Securities"),
representing beneficial ownership interests in the assets of the Trust, and
proposes to invest the proceeds from such offering, together with the proceeds
of the issuance and sale by the Trust to the Company of $____________ aggregate
liquidation amount of its Common Securities; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture pursuant to Sections 2.03 and 8.01 of
the Indenture and all requirements necessary to make this First Supplemental
Indenture a valid and binding instrument in accordance with its terms, and to
make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid and binding obligations of the Company, have
been performed, and the execution and delivery of this First Supplemental
Indenture has been duly authorized in all respects:
5
NOW THEREFORE, in consideration of the purchase of the Debentures by
the Holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the form and substance of the Debentures and the additional terms,
provisions and conditions thereof, the Company covenants and agrees with the
Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used
in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article
of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: Business Day; Common Securi ties; Delaware Trustee; Direct Action;
Distribution; Prop erty Account; Preferred Securities; Guarantee; Preferred
Security Certificate; and Administrative Trustees;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Sums" shall have the meaning set forth in Section
2.5(e).
"Additional Interest" shall have the meaning set forth in Section
4.1.
2
6
"Debentures" shall have the meaning set forth in the preamble of
this First Supplemental Indenture.
"Declaration" means the Amended and Restated Declaration of Trust of
the Trust, dated as of _____, , 1998, as amended from time to time.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Depositary", with respect to the Debentures, means The Depository
Trust Company or such other successor Clearing Agency for the Preferred
Securities.
"Dissolution Event" means the liquidation of the Trust pursuant to
the Declaration and the distribution of the Debentures held by the Property
Trustee to the holders of the Trust Securities issued by the Trust pro rata in
accordance with the Declaration.
"Extension Period" shall have the meaning set forth in Section 4.1.
"Global Debenture" shall have the meaning set forth in Section
2.4(a)(i).
"Interest Payment Date" shall have the meaning set forth in Section
2.5(d).
"Interest Period" means each period beginning on, and including,
_________, _______, and ending on, but excluding, the first Interest Payment
Date, and each successive period beginning on, and including, an Interest
Payment Date and ending on, but excluding, the next succeeding Interest Payment
Date.
"Investment Company Event" means the receipt by the Trust of an
opinion of counsel, rendered by a law firm having a recognized national
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), there is more than an insubstantial risk
that the Trust is or will be considered an "investment company" that is required
to be registered under the Investment Company Act, which Change in 1940 Act Law
becomes
3
7
effective on or after the date of issuance of the Preferred Securities under the
Declaration.
"Investment Company Event Redemption Price" means, with respect to a
redemption following an Investment Company Event, 100% of the principal amount
of the Debentures to be redeemed plus accrued and unpaid interest thereon,
including Additional Interest, if any, to the redemption date.
"Maturity Date" shall mean ___________,2028.
"Non Book-Entry Preferred Securities" shall have the meaning set
forth in Section 2.4(a)(ii).
"Other Guarantees" means all guarantees issued or to be issued by
the Company with respect to capital securities (if any) and issued to other
trusts to be established by the Company (if any), in each case similar to the
Trust.
"Optional Redemption" means a redemption pursuant to Section 3.3(a).
"Optional Redemption Price" has the meaning set forth in Section
3.3(a).
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of (or premium, if any) or interest on, or other
amounts in respect of, any Debentures on behalf of the Company.
"Security Registrar" shall have the meaning set forth in Section
2.3.
"Tax Event" means the receipt by the Trust of an opinion of counsel
to the Company that is experienced in such matters to the effect that, as a
result of any amend ment to, clarification of, or change (including any
announced proposed change) in, the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof or
therein, or change in the official position with respect thereto or as a result
of any official administrative pronouncement or judicial decision interpreting
or applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement notice, announcement or decision is
announced on or after the date of issuance of the Preferred Securities under the
Declaration, there is more than an insubstantial
4
8
risk that (i) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by the Company on
the Debentures is not, or within 90 days of the date of such opinion, will not
be, deductible by the Company, in whole or in part, for United States federal
income tax purposes or (iii) the Trust is, or will be within 90 days of the date
of such opinion, subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
"Tax Event Redemption Price" means, with respect to a redemption
following a Tax Event, 100% of the principal amount of the Debentures to be
redeemed plus accrued and unpaid interest, including Additional Interest and
Additional Sums, if any, to the redemption date.
"Trust" shall have the meaning set forth in the preamble of this
First Supplemental Indenture.
"Trust Securities" shall mean the Preferred Securities and the
Common Securities, collectively.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Debt Securities designated
the "________% Junior Subordinated Deferrable Interest Debentures, Series I",
limited in aggregate principal amount to $___________, which amount shall be as
set forth in any written order of the Company for the authentication and
delivery of Debentures pursuant to Section 2.05 of the Indenture.
SECTION 2.2. Maturity.
The Maturity Date (which shall constitute the Stated Maturity of the
Debentures for purposes of the Indenture) shall be the date on which the
Debentures mature and on which the principal thereof shall be due and payable
together with all accrued and unpaid interest thereon (including Additional
Interest and Additional Sums, if any).
5
9
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons. Principal of,
premium, if any, and interest on (including Additional Interest and Additional
Sums, if any) the Debentures issued in certificated form will be payable, the
transfer of such Debentures will be registrable and such Debentures will be
exchangeable for Debentures bearing identical terms and provisions at the office
or agency of the Company maintained for such purpose as set forth in the
Indenture; provided, however, that payment of interest with respect to
Debentures (other than a Global Debenture) may be made at the option of the
Company (i) by check mailed to the Holder at such address as shall appear in the
Security Register or (ii) by transfer to an account maintained by the Person
entitled thereto, provided that proper transfer instructions have been received
in writing by the relevant record date. The Company selects each of New York,
New York and Chicago, Illinois as a place of payment where the principal of (and
premium, if any) and interest on the Debentures are payable as specified in
accordance herewith, and hereby appoints Xxxxxx Trust and Savings Bank, the
Trustee, as registrar for the Debentures (the "Security Registrar").
Notwithstanding the foregoing, so long as the Holder of any Debentures is the
Property Trustee, the payment of the principal of, premium, if any, and interest
(including Additional Interest and Additional Sums, if any) on such Debentures
held by the Property Trustee will be made at such place and to such account as
may be designated by the Property Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to
the Trustee by the Property Trustee in exchange for one or more global
Debentures in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Debentures (each a "Global
Debenture"), to be registered in the name of the Depositary, or its
nominee, and delivered by the Trustee to or upon the order of the
Depositary for crediting to the accounts of its participants pursuant to
the instructions of the Administrative Trustees. The Company
6
10
upon any such presentation shall execute such Global Debenture or Global
Debentures in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture.
Payments on the Debentures issued in the form of a Global Debenture will
be made to the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to
the Trustee by the Property Trustee and any Preferred Security Certificate
which represents Preferred Securities other than Preferred Securities held
by the Clearing Agency or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial interests in
Debentures presented to the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of
the Non Book-Entry Preferred Securities until such Preferred Security
Certificates are presented to the Security Registrar for transfer or
reissuance at which time such Preferred Security Certificates will be
cancelled and a Debenture, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the
Preferred Security Certificate cancelled, will be executed by the Company
and delivered to the Trustee for authentication and delivery in accordance
with the Indenture. Upon the issuance of such Debentures, Debentures with
an equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at a rate of ______% per annum
from _________, ______ until the principal thereof becomes due and payable, and
on any overdue principal at a rate of ______% per annum and (to the extent
7
11
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at a rate of _______% per annum, compounded
quarterly, payable (subject to the provisions of Article IV) quarterly in
arrears on the day of ________, _________, _________ and ________ of each year
commencing on ________, _______, to the Person in whose name such Debenture or
any predecessor Debenture is registered, at the close of business on the regular
record date for such interest installment, which, in respect of any Debentures
of which the Property Trustee is the Holder or in the case of a Global
Debenture, shall be the close of business on the Business Day immediately
preceding that Interest Payment Date (as defined below). Notwithstanding the
foregoing sentence, if the Debentures are no longer in book-entry only form,
except if the Debentures are held by the Property Trustee, the record dates
shall be the _________, __________, and ________ prior to the applicable
Interest Payment Date.
(b) Unless otherwise provided by the Trustee, the Paying Agent will
calculate the amount of interest payable on the Debentures in respect of each
Interest Period. The amount of interest payable for any Interest Period will be
computed (i) for any full quarterly Interest Period, on the basis of a 360-day
year of twelve 30-day months, (ii) for any period shorter than a full quarterly
Interest Period for which distributions are computed, on the basis of a 30-day
month and (iii) for periods of less than a month, the actual number of days
elapsed per 30-day month. The amount of interest payable for any full Interest
Period will be com puted by dividing the rate per annum by four. The
determination of the amount of interest payable by Paying Agent will (in the
absence of wilful default, bad faith or manifest error) be final, conclusive
and binding on all concerned.
(c) All certificates, communications, opinions, determinations,
calculations, quotations and decisions given, expressed, made or obtained for
the purposes of the provisions relating to the payment and calculation of
interest on the Debentures, whether by the Trustee or Paying Agent, will (in the
absence of wilful default, bad faith or manifest error) be binding on the Trust,
the Company, the Trustee and all of the holders of the Debentures, and no
liability will (in the absence of wilful default, bad faith or manifest error)
attach to the Trustee or Paying Agent in
8
12
connection with the exercise or non-exercise by any of them of their powers,
duties and discretion.
(d) In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day, except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date (each date on which interest is actually
payable, an "Interest Payment Date").
(e) If a Tax Event has occurred and is continuing while the Property
Trustee is the Holder of any Debentures, and the Trust or the Property Trustee
is required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States, or
any other taxing authority, then, in any case, the Company will pay such
additional sums ("Additional Sums") on the Debentures held by the Property
Trustee, as shall be required so that the net amounts received and retained by
the Trust and the Property Trustee after paying such taxes, duties, assessments
or other governmental charges will be equal to the amounts the Trust and the
Property Trustee would have received had the Trust and the Property Trustee not
been subject to such taxes, duties, assessments or other government charges as a
result of such Tax Event. Additional Sums shall be treated as interest for all
purposes under the Indenture.
(f) All percentages resulting from any calculations referred to in
this First Supplemental Indenture will be rounded, if necessary, to the nearest
multiple of 1/100 of 1% and all U.S. dollar amounts used in or resulting from
such calculations will be rounded to the nearest cent (with one-half cent or
more being rounded upwards).
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event Redemption.
If at any time a Tax Event shall occur and be continuing, the
Company shall have the right upon not less
9
13
than 30 nor more than 60 days' notice, to redeem the Debentures, in whole, but
not in part, for cash within 90 days following the occurrence of such Tax Event
at the Tax Event Redemption Price.
SECTION 3.2. Investment Company Event of Redemption.
If at any time an Investment Company Event shall occur and be
continuing, the Company shall have the right, upon not less than 30 nor more 60
days' notice, to redeem the Debentures, in whole, but not in part, for cash
within 90 days following the occurrence of such Investment Company Event at the
Investment Company Event Redemption Price.
SECTION 3.3. Optional Redemption by Company.
(a) The Company shall have the right to redeem the Debentures, in
whole or in part, from time to time, on or after _________, _________, upon not
less than 30 days nor more than 60 days' notice at a redemption price equal to
100% of the principal amount of the Debentures to be redeemed plus accrued and
unpaid interest thereon, including Additional Interest, if any, to the
redemption date (in any such case, an "Optional Redemption Price").
(b) If the Debentures are only partially redeemed pursuant to this
Section 3.3, the Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Security Registrar; provided, that if at the time of
redemption the Debentures are registered as a Global Debenture, the Depositary
shall determine, in accordance with its procedures, the principal amount of such
Debentures beneficially held by each Holder of Debentures to be redeemed.
(c) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust or the Debentures from
any national securities exchange or interdealer quotation system or other
organization on which the Preferred Securities or Debentures are then listed,
the Company shall not be permitted to effect such a partial redemption and may
only effect such a redemption as would not result in such a delisting.
10
14
SECTION 3.4. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debentures, to defer payments of interest on the Debentures by extending
the interest payment period of such Debentures for a period not exceeding 20
consecutive quarterly periods (the "Extension Period"), during which Extension
Period no interest shall be due and payable; provided that no Extension Period
shall end on a date other than an Interest Payment Date or extend beyond the
Maturity Date. To the extent permitted by applicable law, interest, the payment
of which has been deferred because of the extension of the interest payment
period pursuant to this Section 4.1 will bear interest thereon at a rate of
_______% per annum compounded quarterly for each quarterly period of the
Extension Period ("Additional Interest"). At the end of the Extension Period,
the Company shall pay all interest accrued and unpaid on the Debentures,
including any Additional Sums and Additional Interest (together, "Deferred
Interest") that shall be payable to the Holders in whose names the Debentures
are registered in the Security Register on the record date relating to the
Interest Payment Date on which the Extension Period ends. Before the termination
of any Extension Period, the Company may further defer payments of interest by
further extending such period, provided that such period, together with all such
previous and further extensions within such Extension Period, shall not exceed
20 consecutive quarterly periods or extend beyond the Maturity Date of the
Debentures. Upon the termination of any Extension Period and the payment of all
Deferred Interest then due, the Company may commence a new Extension Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof. Additional Interest shall
be treated as interest for all purposes under the Indenture.
11
15
SECTION 4.2. Notice of Extension.
(a) The Company shall give written notice to the Administrative
Trustees, the Property Trustee and the Trustee of its selection of such
Extension Period at least one Business Day before the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities issued by the
Trust are payable, or (ii) the date the Trust is required to give notice of the
record date, or the date such Distributions are payable, to any national
securities exchange or interdealer quotation system or to holders of the
Preferred Securities issued by the Trust, but in any event at least one Business
Day before such record date.
(b) The quarterly period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20
quarterly periods permitted in the maximum Extension Period permitted under
Section 4.1.
ARTICLE V
FORM OF DEBENTURE
SECTION 5.1. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the forms set forth in Exhibit A
hereto.
ARTICLE VI
ORIGINAL ISSUE OF DEBENTURES
SECTION 6.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $___________ may,
upon execution of this First Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication as provided in Sections 2.03 and
2.05 of the Indenture.
12
16
ARTICLE VII
COVENANTS
SECTION 7.1. Limitation on Dividends.
The Company will not, and will not permit any subsidiary to, (i)
declare or pay any dividends or distributions on, or prepay, purchase, acquire,
or make a liquidation payment with respect to, any of the Company's capital
stock, (ii) make any payment of principal of, premium, if any, or interest on or
repay, repurchase or redeem any debt securities of the Company (including Other
Debentures) that rank pari passu with, or junior in right of payment to, the
Debentures or (iii) make any guarantee payment with respect to any guarantee by
the Company of the debt securities of any Subsidiary of the Company(including
Other Guarantees) if such guarantee ranks pari passu with, or junior in right of
payment to, the Debentures (other than (a) dividends or distributions by the
Company by way of issuance of its common stock, (b) payments under the Guarantee
made by the Company in respect of the Trust Securities of such Trust, (c) any
declaration of a dividend in connection with the implementation of a
shareholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, and
(d) purchases of common stock related to the issuance of common stock or rights
under any of the Company's benefit plans), if at such time (1) there shall have
occurred any event of which the Company has actual knowledge that with the
giving of notice, or the lapse of time, or both, would constitute an Event of
Default hereunder, (2) if such Debentures are held by the Property Trustee, the
Company shall be in default with respect to its payment obligations under the
Preferred Securities Guarantee or Common Securities Guaran tee or (3) the
Company shall have given notice of its selection of an Extension Period and
shall not have rescinded such notice or such Extension Period and such Extension
Period shall be continuing.
SECTION 7.2. Covenants as to the Trust.
In the event Debentures are issued to the Trust or a trustee of such
trust in connection with the issuance of Trust Securities by the Trust, for so
long as such Trust Securities remain outstanding, the Company (i) will maintain
100% direct or indirect ownership of the Common Securities
13
17
of the Trust; provided, however, that any successor of the Company, permitted
pursuant to Article X of the Indenture, may succeed to the Company's ownership
of such Common Securities, (ii) will use commercially reasonable efforts to
cause the Trust (a) to remain a grantor trust, except in connection with a
distribution of Debentures to the holders of Trust Securities in liquidation of
the Trust, the redemption of all of the Trust Securities of the Trust, or
certain mergers, consolidations or amalgamations, each as permitted by the
Declaration, and (b) to otherwise continue to be classified as a grantor trust
and not an association taxable as a corporation for United States federal income
tax purposes and (iii) will not cause, as sponsor of the Trust, or permit, as
holder of the Common Securities, the dissolution, winding-up or termination of
the Trust, except in connection with a distribution of the Debentures as
provided in the Declaration and in connection with certain mergers,
consolidations or amalgamations.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and this First Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 8.2. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Debentures held
by the Trust or a trustee thereof, if the Property Trustee of such Trust fails
to enforce its rights under this First Supplemental Indenture or the Indenture
as the Holder of the Debentures held as the assets of FW Preferred Capital Trust
I, any holder of Preferred Securities may institute legal proceedings directly
against the Company to enforce such Property Trustee's rights under this First
Supplemental Indenture or the Indenture without first instituting any legal
proceedings against such Property Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company
14
18
to pay principal of, premium, if any, or interest on the Debentures when due,
the Company acknowledges that a holder of Preferred Securities may institute a
Direct Action for enforcement of payment to such holder of the principal of,
premium, if any, or interest on the Debentures having a principal amount equal
to the aggregate liquidation amount of the Preferred Securities of such holder
on or after the respective due date specified in the Debentures.
SECTION 8.3. Direction of Proceedings and Waiver of De faults by Majority of
Holders.
The Holders of a majority in aggregate principal amount of the
Debentures at the time outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; provided,
however, that (subject to the provisions of Section 6.01 of the Indenture) the
Trustee shall have the right to decline to follow any such direction if the
Trustee shall determine that the action so directed would be unjustly
prejudicial to the Holders not taking part in such direction, it being
understood that the Trustee shall have no duty or obligation to determine
whether or not such actions or forebearances would be unduly prejudicial to such
Holders, or if the Trustee being advised by counsel determines that the action
or proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or Responsible Officers shall determine
that the action or proceedings so directed would likely involve the Trustee in
personal liability. Prior to any declaration accelerating the maturity of the
Debentures, the Holders of a majority in aggregate principal amount of the
Debentures at the time outstanding may on behalf of the Holders of all of the
Debentures waive any past default or Event of Default and its consequences
except a default (a) in the payment of principal of, premium, if any, or
interest on any of the Debentures (unless such default has been cured and a sum
sufficient to pay all matured installments of principal, premium, if any, and
interest due otherwise than by acceleration has been deposited with the
Trustee) or (b) in respect of covenants or provisions hereof which cannot be
modified or amended without the consent of the Holder of each Debenture
affected; provided, however, that if the Debentures are held by the Property
Trustee, such waiver or modification to such waiver
15
19
shall not be effective until the holders of a majority in aggregate liquidation
amount of Trust Securities shall have consented to such waiver or modification
to such waiver; provided further, that if the consent of the Holder of each
outstanding Debenture is required, such waiver shall not be effective until each
holder of the Trust Securities shall have consented to such waiver. Upon any
such waiver, the default covered thereby shall be deemed to be cured for all
purposes of this First Supplemental Indenture and the Indenture and the Company,
the Trustee and the Holders shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon. Whenever any
default or Event of Default hereunder shall have been waived as permitted by
Section 5.08 of the Indenture, said default or Event of Default shall for all
purposes of the Debentures and the Indenture be deemed to have been cured and to
be not continuing.
SECTION 8.4. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the legality, validity or sufficiency
of this First Supplemental Indenture.
SECTION 8.5. Governing Law.
This First Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 8.6. Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
16
20
SECTION 8.7. Counterparts.
This First 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.
17
21
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
XXXXXX XXXXXXX CORPORATION
By:
-----------------------------
Name:
Title:
Attest:
By:
------------------------------
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
By:
-----------------------------
Name:
Title:
Attest:
By:
------------------------------
Name:
Title:
18
22
EXHIBIT A
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Book-Entry Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Debenture (other than a transfer of this Debenture 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) may be registered except in
limited circumstances.
Unless this Debenture is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
issuer or its agent for registration of transfer, exchange or payment, and any
Debenture issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.]
A-1
23
No. __________ CUSIP No. __________
XXXXXX XXXXXXX CORPORATION
__________% __________
XXXXXX XXXXXXX CORPORATION, a New York corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to FW Preferred Capital
Trust I, or registered assigns, the principal sum of $__________ on ________,
_________, __________, _____ and to pay interest on said principal sum from
___________, ________, or from the most recent interest payment date to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on the _______day of ______, _______, ________ and
________ of each year commencing __________, _______, at a rate of _______% per
annum until the principal hereof shall have become due and payable, and on any
overdue principal and premium, if any, at a rate of ________% per annum and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at a
rate of ____% per annum compounded quarterly. The amount of interest payable on
any Interest Payment Date (as defined below) shall be calculated as provided in
the Indenture. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day, except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date (each date on which interest is actually
payable, an "Interest Payment Date"). The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Debentures, as defined in said Indenture) is
registered at the close of business on the regular record date for such interest
installment, which shall be, except if the Debentures are held by the Property
Trustee, the close of business on the ________, ________, ________ and _________
prior to the applicable Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such regular record date and may be paid to the Person in
A-2
24
whose name this Debenture (or one or more Predecessor Debentures) is registered
at the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders not less than 10 days prior to such special record date, or
may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange or interdealer quotation system on
which the Debentures may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of,
premium, if any, and interest (including Additional Interest and Additional
Sums, if any) on this Debenture shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made, at the
option of the Company, by check mailed to the registered Holder at such address
as shall appear in the Security Register or by wire transfer to an account
designated by a Holder in writing not less than ten days prior to the date of
payment. Notwithstanding the foregoing, so long as the Holder of this Debenture
is the Property Trustee, the payment of the principal of, premium, if any, and
interest on this Debenture will be made at such place and to such account as may
be designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder or creditor upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, or be valid or
A-3
25
become obligatory for any purpose until the Certificate of Authentication hereon
shall have been signed by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
XXXXXX XXXXXXX CORPORATION
By:
-----------------------------
Name:
Title:
Attest:
By:
-----------------------------------
Name:
Title:
A-4
26
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series desig nated therein
referred to in the within-mentioned Indenture.
Xxxxxx Trust and Savings Bank,
as Trustee
By:
----------------------------------
Authorized Officer
Dated:
-------------------------------
A-5
27
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of debentures of
the Company (herein sometimes referred to as the "Debentures"), all issued or to
be issued in one or more series under and pursuant to an Indenture, dated as of
___________, _______duly executed and delivered between the Company and Xxxxxx
Trust and Savings Bank, as Trustee (the "Trustee"), as supplemented by the ____
Supplemental Indenture, dated as of __________, _________between the Company and
the Trustee (the Indenture as so supplemented, the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Debentures. By the terms of the Indenture, Debentures are issuable in series
that may vary as to amount, date of maturity, rate of interest and in other
respects as provided in the Indenture. This Debenture is one of the series
designated on the face hereof and is limited in aggregate principal amount as
specified in said ___________ Supplemental Indenture.
Upon the occurrence and continuation of a Tax Event or Investment
Company Event, the Company shall have the right, subject to certain conditions
set forth in the Indenture, to redeem this Debenture in whole, but not in part,
at the Tax Event Redemption Price or Investment Company Event Redemption Price,
as the case may be, within 90 days following the occurrence of such Tax Event or
Investment Company Event. In addition, the Company shall have the right to
redeem this Debenture, in whole or in part, from time to time on or after
___________, 2003, at a redemption price equal to 100% of the principal amount
of the Debentures to be redeemed plus accrued and unpaid interest thereon,
including Additional Interest, if any, to the redemption date. Any redemption
pursuant to this paragraph will be made upon not less than 30 days nor more than
60 days notice. If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption, the Debentures will be redeemed pro rata or
by lot or by any other method utilized by the Security Registrar; provided that
if, at the time of redemption, the Debentures are registered as a Global
Debenture, the Depositary shall determine the principal amount of such
Debentures beneficially held by each Debenture holder to be redeemed in
accordance with its procedures.
A-6
28
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Debentures of all series affected
(acting as one class), to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Debentures; provided, however, that
no such supplemental indenture shall without the consent of the Holders of the
outstanding Debentures affected thereby (i) change the Maturity Date, or reduce
the rate or extend the time of payment of interest (except as contemplated by
Section 4.1 of the First Supplemental Indenture), or reduce the principal amount
thereof, or reduce any amount payable on prepayment thereof, or make the
principal thereof or any interest or premium thereon payable in any coin or
currency other than that in which any Debenture (or premium, if any, thereon) or
the interest thereon is payable according to its terms, or impair or affect the
right of any Holder to institute suit for payment thereof; (ii) reduce the
percentage in principal amount of the outstanding Debentures, the Holders of
which are required to consent to any such amendment to the First Supplemental
Indenture; or (iii) modify any of the provisions of Section 5.08 or 9.02 of the
Indenture except to increase any such percentage or to provide that certain
other provisions of the Indenture cannot be modified or waived without the
consent of the Holder of each Debenture affected thereby; provided, however,
that if the Debentures are held by the Property Trustee of the Trust, such
amendment shall not be effective until the holders of a majority in liquidation
amount of Trust Securities shall have consented to such amendment; provided,
further, that if the consent of the Holder of each outstanding Debenture is
required, such amendment shall not be effective until each holder of the
A-7
29
Trust Securities shall have consented to such amendment. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the outstanding Debentures of any series affected thereby, and, in the
case of any Debentures of a series issued to the Trust, the holders of a
majority in liquidation amount of Trust Securities, on behalf of all of the
Holders of the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of, premium, if any, or
interest on any of the Debentures of such series or covenants or provisions
thereof which cannot be modified or amended without the consent of the Holder of
each Debenture affected. Any such consent or waiver by the registered Holder of
this Debenture, or the holders of the Trust Securities, as applicable, (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Debenture and of any
Debenture issued in exchange therefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Debenture at the time and place and at the rate and
in the money herein prescribed.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debentures, to defer payments of interest on this Debenture by extending
the interest payment period of this Debenture for a period not exceeding 20
consecutive quarterly periods (an "Extension Period") during which Extension
Period no interest shall be due and payable; provided that no Extension Period
shall end on a date other than an Interest Payment Date or extend beyond the
Maturity Date. Before the termination of any Extension Period, the Company may
further defer payments of interest by further extending such period, provided
that such period, together with all such previous and further extensions within
such Extension Period, shall not exceed 20 consecutive quarterly periods or
extend beyond the Maturity Date. Upon the termination of any Extension Period
and the payment of all
A-8
30
accrued and unpaid interest and including any Additional Sums and Additional
Interest then due, the Company may commence a new Extension Period, subject to
the foregoing requirements.
The Company will not (i) declare or pay any dividends or
distributions on, or prepay, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock, (ii) make any payment of
principal of, premium, if any, or interest on or repay, repurchase or redeem any
debt securities of the Company (including Other Debentures) that rank pari passu
with, or junior in right of payment to, the Debentures or (iii) make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiary of the Company(including Other Guarantees) if such
guarantee ranks pari passu with or junior in right of payment to the Debentures
(other than (a) dividends or distributions by the Company by way of issuance of
its common stock, (b) payments under the Guarantee made by the Company in
respect of the Trust Securities of such Trust, (c) any declaration of a dividend
in connection with the implementation of a shareholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, and (d) purchases of common
stock related to the issuance of common stock or rights under any of the
Company's benefit plans), if at such time (1) there shall have occurred any
event of which the Company has actual knowledge that with the giving of notice,
or the lapse of time, or both would constitute an Event of Default, (2) if such
Debentures are held by the Property Trustee, the Company shall be in default
with respect to its payment obligations under the Preferred Securities Guarantee
or Common Securities Guarantee or (3) the Company shall have given notice of its
selection of an Extension Period and shall not have rescinded such notice or
such Extension Period and such Extension Period shall be continuing.
The Company will have the right at any time to liquidate the Trust
and cause the Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in Xxx
X-0
00
Xxxx, Xxx Xxxx, c/x Xxxxxx Trust Co. of New York, 00 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by the registered Holder hereof or his or her attorney duly authorized
in writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be made for any such
transfer, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security Registrar
may deem and treat the registered holder hereof as the owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and (subject to Section 2.5 of the First Supplemental
Indenture) interest due hereon and for all other purposes, and neither the
Company nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures are issuable only in registered form without coupons
in denominations of $25 and any integral multiple thereof.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-10
32
THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
A-11
