EXHIBIT 4(NNNNN)
XXXXXXX XXXXX & CO., INC.
TO
THE CHASE MANHATTAN BANK,
AS TRUSTEE
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[ ] SUPPLEMENTAL INDENTURE
DATED AS OF , 1998
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SUPPLEMENTAL TO INDENTURE
DATED AS OF APRIL 1, 1983
AS AMENDED
TABLE OF CONTENTS
Article I
DEFINITIONS
PAGE
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Section 1.01. Definitions.................................................. 2
Article II
AMENDMENT OF CERTAIN PROVISIONS
OF THE PRINCIPAL INDENTURE
Section 2.01.Amendments.................................................... 2
Article III
MISCELLANEOUS
Section 3.01.Effect of Supplemental Indenture.............................. 9
Section 3.02.Conflict with Trust Indenture Act............................. 9
Section 3.03.Successors and Assigns........................................ 9
Section 3.04.Separability Clause........................................... 9
Section 3.05.Benefits of Supplemental Indenture............................ 9
Section 3.06.Governing Law................................................. 9
Section 3.07.Execution in Counterparts..................................... 9
Section 3.08.Responsibility for Recitals................................... 9
[ ] Supplemental Indenture, dated as of , 1998 (the "Supplemental
Indenture"), by and between Xxxxxxx Xxxxx & Co., Inc., a corporation organized
and existing under the laws of the State of Delaware, having its principal
office at World Financial Center, New York, New York 10281 (the "Company"),
and The Chase Manhattan Bank, formerly known as Chemical Bank (successor by
merger to Manufacturers Hanover Trust Company), a corporation duly organized
and existing under the laws of the State of New York and having its Corporate
Trust Office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as trustee
(the "Trustee").
WHEREAS, the Company has heretofore executed and delivered its Indenture,
dated as of April 1, 1983 and restated as of April 1, 1987 (as amended and
supplemented to the date hereof, the "Principal Indenture"), to the Trustee to
provide for the issuance from time to time of its unsecured and unsubordinated
debentures, notes or other evidences of senior indebtedness (the
"Securities"), unlimited as to principal amount or aggregate issue price, as
the case may be, and
WHEREAS, the Principal Indenture, as amended by the Trust Indenture Reform
Act of 1990, and this Supplemental Indenture are hereinafter collectively
referred to as the "Indenture"; and
WHEREAS, the Company proposes to allow for terms of the Securities which
will permit or require the Company to pay and discharge the Securities when
due by delivering to the Holders thereof other securities (whether or not
issued by, or the obligations of, the Company) or a combination of cash, other
securities and/or other property, as provided herein; and
WHEREAS, Section 901 of the Principal Indenture provides that, without the
consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Principal Indenture, in form satisfactory to
the Trustee, (a) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301 thereof and (b) to cure any ambiguity, to
correct or supplement any provision in the Principal Indenture which may be
defective or inconsistent with any other provision of the Principal Indenture,
or to make any other provisions with respect to matters or questions arising
under the Principal Indenture which shall not be inconsistent with the
provisions of the Principal Indenture and which shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons in
any material respect; and
WHEREAS, the Company has duly authorized the execution and delivery of this
Supplemental Indenture, and all things necessary to make this Supplemental
Indenture a valid agreement of the Company, in accordance with its terms, have
been done;
NOW, THEREFORE, the Company and the Trustee, in consideration of the
premises and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, hereby covenant and agree, for
the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of the Principal Indenture and
this Supplemental Indenture, except as otherwise expressly provided or unless
the context otherwise requires, the terms defined in this Article I have the
meanings assigned to them in this Article I. Capitalized terms used in the
Principal Indenture and this Supplemental Indenture but not defined herein are
used as they are defined in the Principal Indenture.
"Maturity Consideration" means the securities (whether or not issued by,
or the obligation of, the Company), the amount of cash (including payment
of principal and premium, if any), or a combination of cash, securities
and/or other property, in either case deliverable upon payment and
discharge of the Securities of a series when due or upon redemption as
established in or pursuant to, from time to time, a Board Resolution, and
set forth in an Officers' Certificate or established in one or more
supplemental indentures.
"Supplemental Indenture" has the meaning specified in the first paragraph
of this instrument.
ARTICLE II
AMENDMENT OF CERTAIN PROVISIONS
OF THE PRINCIPAL INDENTURE
Section 2.01. Amendments. The Principal Indenture is hereby amended with
respect to all series of Securities issued on or after the date hereof as
follows:
(a) By deleting the first paragraph of Section 308 of the Principal
Indenture in its entirety and inserting in its stead the following:
"Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving delivery or payment of the Maturity Consideration in respect of,
and (subject to Sections 305 and 307) interest on, and Additional Amounts
with respect to, such Registered Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary."
(b) (i) By amending Section 501 of the Principal Indenture by (i) adding as
a new clause (5) the following:
"(5) default in the delivery or payment of the Maturity Consideration of
that series when due; or"; and
(ii) renumbering current clauses (5), (6) and (7) as clauses (6), (7) and
(8), respectively.
(c) By deleting Section 502 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount or
aggregate issue price, as the case may be, of the Outstanding Securities of
that series may declare the principal of, or an amount equal to the
aggregate issue price of, all the Securities of such series, or such amount
or aggregate issue price, as the case may be, as may be provided for in the
Securities of that series, to be due and payable immediately by a notice in
writing to the Company (and to the Trustee if given by the Holders), and
upon any such declaration such principal or such amount shall become
immediately due and payable in cash as though the date of acceleration were
the Maturity Date.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount or
aggregate issue price, as the case may be, of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if
2
(1) the Company has deposited with or paid the Trustee
(A) the Maturity Consideration relating to any Securities of that
series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates borne by or
provided for in such Securities,
(B) all overdue installments of interest on and any Additional
Amounts payable in respect of all Securities of that series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel,
and
(2) all Events of Default with respect to Securities of that series,
other than the non-delivery or non-payment of the Maturity
Consideration with respect to such series, due solely by reason of such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon."
(d) By deleting the first paragraph of Section 503 of the Principal
Indenture in its entirety and inserting in its stead the following:
"The Company covenants that if,
(1) default is made in the payment of any installment of interest on
or any Additional Amounts payable in respect of any Securities when
such interest or such Additional Amounts shall have become due and
payable and such default continues for a period of 30 days, or
(2) default is made in the delivery or payment of the Maturity
Consideration relating to any Security at its Maturity,
the Company will, upon demand of the Trustee, deliver or pay to it,
for the benefit of the Holders of such Securities and coupons, the
whole amount and/or other consideration then due and payable on such
Securities and coupons for Maturity Consideration and interest and
Additional Amounts, if any, with interest upon the overdue Maturity
Consideration and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest or any
Additional Amounts, interest on any overdue interest or any Additional
Amounts, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to deliver or to pay such amounts and/or other
consideration forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a judicial proceeding
for the collection of such amounts and/or other consideration so due
and undelivered or unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Company
or any other obligor upon such Securities and collect the moneys and/or
other consideration adjudged or decreed to be deliverable or payable in
the manner provided by law out of the property of the Company or any
other obligor upon the Securities, wherever situated."
(e) By deleting Section 506 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 506. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of the Maturity Consideration, interest or any
Additional Amounts, upon presentation of the relevant Securities or
coupons, or both, as the case may be and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of any amounts then due and unpaid on the
Securities and coupons for Maturity Consideration and interest and any
Additional Amounts payable in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the aggregate amounts due and
payable on such Securities and coupons for Maturity Consideration and
interest and any Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto."
(f) By deleting Section 507 (2) and (5) of the Principal Indenture in their
entirety and inserting in their stead the following:
"(2) The Holders of not less than 25% in principal amount or aggregate
issue price, as the case may be, of the Outstanding Securities of that
series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;"
"(5) No direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount or aggregate issue price, as the case may be, of the
Outstanding Securities of that series;"
(g) By deleting Section 508 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 508. Unconditional Right of Holders to Receive the Maturity
Consideration and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right, which
is absolute and unconditional, to receive delivery or payment of the
Maturity Consideration relating to, and (subject to Sections 305 and 307)
interest on and any Additional Amounts payable in respect of, such Security
or payment of such coupon on the respective Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
delivery or payment, and such right shall not be impaired without the
consent of such Holder."
(h) By deleting the first clause of the first sentence of Section 513 of the
Principal Indenture in its entirety and inserting in its stead the following:
"(1) in the delivery or payment of the Maturity Consideration or interest
on or Additional Amounts payable in respect of any Securities of such
series, or"
(i) By deleting Section 801 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 801. Consolidations and Mergers of the Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation, provided that in
any such case, (i) either the Company shall be the continuing corporation,
or the successor corporation shall be a corporation organized and existing
under the laws of the United States of America or a State thereof and such
successor corporation shall expressly assume the due and punctual delivery
or payment of the Maturity Consideration in respect of, any interest on,
and any Additional Amounts payable pursuant to Section 1004 with respect
to, all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, and (ii) the Company or such successor corporation, as the
case may be, shall not, immediately after such merger or consolidation, or
such sale, lease or conveyance, be in default in the performance of any
such covenant or condition."
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(j) By deleting the first sentence of Section 902 of the Principal Indenture
in its entirety and inserting in its stead the following:
"With the consent of the Holders of not less than 66 2/3% of the
principal amount or aggregate issue price, as the case may be, of the
Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security affected thereby,
(1) change the Maturity Date or the Stated Maturity of the Maturity
Consideration of, or any installment of interest or Additional Amounts
on any Security, or reduce the principal amount thereof or the amount
or type of Maturity Consideration or the rate of interest thereon or
any Additional Amounts payable in respect thereof, or change the
obligation of the Company to pay Additional Amounts pursuant to Section
1004 (except as contemplated by 801(i) and permitted by Section
901(1)), or reduce the amount of Maturity Consideration of an Original
Issue Discount Security that would be due and deliverable or payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or, change any Place of Payment where, or the coin or
currency in which, any Maturity Consideration, interest or Additional
Amounts on any Security are deliverable or payable, or change the
provisions with respect to redemption, or impair the right to institute
suit for the enforcement of the delivery or payment on or with respect to
any Securities on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount or aggregate issue
price, as the case may be, of the Outstanding Securities of any series,
the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1404 for quorum or
voting, or
(3) modify any of the provisions of this Section, or Section 513, or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby."
(k) By deleting the first sentence of Section 1001 of the Principal
Indenture in its entirety and inserting in its stead the following:
"Section 1001. Delivery or Payment of Maturity Consideration and
Interest. The Company covenants and agrees for the benefit of the Holders
of each series of Securities that it will duly and punctually deliver or
pay the Maturity Consideration and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the
terms of such series of Securities, any coupons appertaining thereto and
this Indenture. Any interest due on and any Additional Amounts payable in
respect of Bearer Securities on or before Maturity, other than Additional
Amounts, if any, payable as provided in Section 1004 in respect of
principal of (or premium, if any, on) such a Security, shall be payable
only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature."
(l) By deleting Section 1003 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 1003. Money for Security Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the Maturity
Consideration or interest on any of the Securities of that series,
segregate and hold in trust
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for the benefit of the Persons entitled thereto consideration in an amount
sufficient to deliver or pay the Maturity Consideration or a sum sufficient
to pay the interest so becoming due until such consideration shall be
delivered or paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents with respect to
any series of Securities, it will, on or prior to each due date of the
Maturity Consideration or interest on any Securities of that series,
deposit with a Paying Agent consideration in an amount sufficient to
deliver or pay the Maturity Consideration or a sum sufficient to pay the
interest so becoming due, such consideration to be held as provided by the
Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to
act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as Paying Agent,
(ii) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any delivery
or payment of Maturity Consideration or interest on the Securities of that
series; and (iii) during the continuance of any default by the Company (or
any other obligor upon the Securities) in the making of any delivery or
payment in respect of the Securities of such series, upon the written
request of the Trustee, forthwith deliver or pay to the Trustee all
consideration held in trust by such Paying Agent as such.
The Company may at any time, for any purpose, deliver or pay, or by
Company Order direct any Paying Agent to deliver or pay, to the Trustee all
consideration held in trust by the Company or such Paying Agent, such
consideration to be held by the Trustee upon the same trusts as those upon
which such consideration was held by the Company or such Paying Agent; and,
upon such delivery or payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to
such consideration.
Except as otherwise provided in the form of Securities of any particular
series pursuant to the provisions of this Indenture, any consideration
deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the interest on or delivery or payment
upon discharge of any Securities and remaining unclaimed for two years
after such consideration has become due and deliverable or payable shall be
paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security or any
coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for delivery or payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
consideration, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper in each
Place of Payment or to be mailed to Holders of the Registered Securities,
or both, notice that such consideration remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date
of such publication or mailing, any unclaimed balance of such consideration
then remaining will be delivered or repaid to the Company."
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ARTICLE III
MISCELLANEOUS
Section 3.01. Effect of Supplemental Indenture. The Principal Indenture, as
supplemented and amended by this Supplemental Indenture and all other
indentures supplemental thereto, is in all respects ratified and confirmed,
and the Principal Indenture, this Supplemental Indenture and all indentures
supplemental thereto shall be read, taken and construed as one and the same
instrument.
Section 3.02. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
or deemed to be included in this Supplemental Indenture by any of the
provisions of the Trust Indenture Act, such required or deemed included
provision shall control.
Section 3.03. Successors and Assigns. All covenants and agreements in this
Supplemental Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
Section 3.04. Separability Clause. In case any provision in this
Supplemental Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions (or of the other series of Securities) shall not in any way be
affected or impaired thereby.
Section 3.05. Benefits of Supplemental Indenture. Nothing in this
Supplemental Indenture, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder and the Holders of
Securities issued after the date hereof, any benefit or any legal or equitable
right, remedy or claim under this Supplemental Indenture.
Section 3.06. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Section 3.07. Execution in Counterparts. This 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.
Section 3.08. Responsibility for Recitals. The recitals contained herein
shall be taken as statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of the Principal Indenture or this Supplemental
Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
XXXXXXX XXXXX & CO., INC.
By:
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Name: Xxxxxxx Xxxx
Title: Senior Vice President and
Treasurer
THE CHASE MANHATTAN BANK,
as Trustee
By:
-----------------------------------
Name: Xxxxxx X. Deck
Title: Vice President
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