Exhibit 4.01
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of April 20, 1999,
is between XXXXXX BROTHERS HOLDINGS INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), and THE CHASE
MANHATTAN BANK, a banking corporation duly organized and existing under the laws
of the State of New York, acting as Trustee under the Indenture referred to
below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has duly authorized the execution and
delivery of an Indenture dated as of February 1, 1996 (the "Indenture"), as
amended and supplemented, to provide for the issuance from time to time of its
unsecured notes or other evidences of indebtedness to be issued in one or more
series (the "Securities"), as in the Indenture provided, up to such principal
amount or amounts as may from time to time be authorized in or pursuant to one
or more resolutions of the Board of Directors;
WHEREAS, the Company will sell on the date hereof to Xxxxxx
Brothers Holdings Capital Trust II, a Delaware statutory business trust ("Trust
II"), a series of Securities entitled the "7.875% Subordinated Deferrable
Interest Debentures due 2048" (the "Subordinated Debentures");
WHEREAS, the Company has duly authorized the execution and
delivery of this Third Supplemental Indenture in order to provide for certain
supplements to the Indenture which shall only be applicable to the Subordinated
Debentures;
WHEREAS, all acts and things necessary to make this Third
Supplemental Indenture a valid agreement of the Company according to its terms
have been done and performed, and the execution and delivery of this Third
Supplemental Indenture have in all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises, of the
purchase and acceptance of the Securities by the Holders thereof, and of the sum
of one dollar duly paid to it by the Trustee at the execution and delivery of
these presents, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee to supplement the Indenture, only for
purposes of the Subordinated Debentures, as follows:
SECTION 1. AMENDMENTS TO THE INDENTURE
1.1 Amendment to Section 101 of the Indenture. Section 101 of
the Indenture is hereby amended solely with respect to the Subordinated
Indentures by adding the following new definitions thereto, in the appropriate
alphabetical sequence:
"Debentures" means the Company's 7.875% Subordinated
Deferrable Interest Debentures due 2048.
"Declaration" means the Amended and Restated Declaration of
Trust, dated as of April 20, 1999 among the Company and the
trustees named therein.
"Trust II" means Xxxxxx Brothers Capital Trust II, a
Delaware statutory business trust.
1.2 Amendment to Section 501 of the Indenture. Section 501 is
amended by deleting the "or" at the end of paragraph (6) and inserting "; or" at
the end of paragraph (7) in place of the period and adding the following at the
end thereof:
"(8) Trust II shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise terminated its
existence except in connection with (i) distribution of the
Securities held by Trust II to holders of its securities in
liquidation of such holders' interests in Trust II, (ii)
redemption of all of the securities issued by Trust II, or
(iii) mergers, consolidations or amalgamations, each as
permitted by Section 3.15 of the Declaration."
1.3 Amendment to Section 902 of the Indenture. Section
902 is amended to add the following at the end thereof:
"For purposes of this Section 902, if the Debentures are held
by Trust II, the consent of not less than 66 2/3% of the
aggregate liquidation amount of the securities issued by Trust
II shall be required in order for such supplemental indenture
to be effective."
1.4 Amendment to Section 1007 of the Indenture. Section
1007 is amended to add the following at the end thereof:
"For purposes of this Section 1007, if the Debentures are held
by Trust II, the consent of not less than a majority of the
aggregate liquidation amount of the securities issued by Trust
II shall be required in order to waive a covenant."
1.5 Amendment to Section 513 of the Indenture. Section
513 is amended to add the following at the end thereof:
"For purposes of this Section 513, if the Debentures are held
by Trust II, the consent of not less than a majority of the
aggregate liquidation amount of the securities issued by Trust
II shall be required in order to waive such default."
1.6 Amendment to Article Ten of the Indenture. Article Ten of
the Indenture is amended to add the following covenant at the end of such
Article:
"SECTION 1010. Trust Covenants.
The Company shall, for so long as Trust II is in existence:
(i) maintain directly or indirectly 100% ownership of the
common securities of Trust II, (ii) cause Trust II to remain a
statutory business trust and not to be voluntarily dissolved,
wound-up, liquidated or terminated, except as provided for in
the Declaration, (iii) use its commercially reasonable efforts
to assure that Trust II will not be an "investment company"
for purposes of the Investment Company Act of 1940, (iv) take
no action that would be reasonably likely to cause Trust II to
be classified as an association in a publicly traded
partnership taxable as a corporation for United States federal
income tax purposes, and (v) agree to pay all debts and
obligations (other than with respect to the securities issued
by Trust II) and all costs and expenses of Trust II
(including, but not limited to, all costs and expenses
relating to the organization of Trust II, the fees and
expenses of the trustees and all costs and expenses relating
to the operation of Trust II ) and to pay any and all taxes,
duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed on Trust II by the
United States, or any other taxing authority, so that the net
amounts received and retained by Trust II after paying such
expenses will be equal to the amounts Trust II would have
received had no such costs or expenses been incurred by or
imposed on the Trust II. The foregoing obligations of the
Company are for the benefit of, and shall be enforceable by,
any Person to whom any such debts, obligations, costs,
expenses and taxes are owed (each, a "Creditor") whether or
not such Creditor has received notice thereof. Any such
Creditor may enforce such obligations of the Company directly
against the Company, and the Company irrevocable waives any
right or remedy to require that any such Creditor take any
action against Trust II or any other Person before proceeding
against the Company.
SECTION 2. MISCELLANEOUS
2.1 Debentures. Attached hereto as Exhibit A is a form of the
Subordinated Debenture.
2.2 Separability. In case any provision in this Third
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
2.3 Continuance of Indenture. This Third Supplemental
Indenture supplements the Indenture and shall be a part of and subject to all
the terms thereof. The Indenture, as supplemented by this Third Supplemental
Indenture, shall continue in full force and effect.
2.4 The Trustee. The Trustee shall not be responsible in any
manner for or in respect of the validity or sufficiency of this Third
Supplemental Indenture, or for or in respect of the recitals contained herein,
all of which recitals are made by the Company solely.
2.5 Governing Law. This Third Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
2.6 Defined Terms. All capitalized terms used in this Third
Supplemental Indenture which are defined in the Indenture, but not otherwise
defined herein, shall have the same meanings assigned to them in the Indenture.
2.7 Counterparts. This Third 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 counterparts shall together constitute
but one and the same instrument.
The Chase Manhattan Bank hereby accepts the trusts in this
Third Supplemental Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, Xxxxxx Brothers Holdings Inc. has caused
this Third Supplemental Indenture to be signed and acknowledged by its
President, its Chairman of the Board, one of its Vice Presidents, its Chief
Executive Officer or its Treasurer, and The Chase Manhattan Bank, as Trustee,
has caused this Third Supplemental Indenture to be signed and acknowledged by
one its authorized officers, and its corporate seal to be affixed hereunto, and
the same to be attested by one of its authorized officers, as of the day and
year first above written.
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title: Authorized Signatory
