Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 6, 2002
BETWEEN
GABELLI ASSET MANAGEMENT INC.
AS ISSUER
AND
THE BANK OF NEW YORK
AS TRUSTEE
Table of Contents
Page
Article I DEFINITIONS..........................................1
Section 1.1 Definition of Terms.................................1
Article II GENERAL TERMS AND CONDITIONS OF THE NOTES............3
Section 2.1 Designation and Principal Amount....................3
Section 2.2 Maturity............................................3
Section 2.3 Form, Payment and Appointment.......................3
Section 2.4 Global Notes........................................4
Section 2.5 Interest............................................5
Article III REDEMPTION OF THE NOTES..............................6
Section 3.1 Tax Event Redemption................................6
Section 3.2 Redemption Procedures for Notes.....................6
Section 3.3 No Sinking Fund.....................................6
Section 3.4 Option to Put Notes upon
Failed Secondary Remarketing........................6
Section 3.5 Repurchase Procedure for Notes......................7
Article IV [Article IV RESERVED]................................7
Article V NOTICE...............................................7
Section 5.1 Notice by the Company...............................7
Article VI FORM OF NOTE.........................................8
Section 6.1 Form of Note........................................8
Article VII ORIGINAL ISSUE OF DISCOUNT..........................18
Section 7.1 Original Issue of Discount.........................18
Article VIII MISCELLANEOUS.......................................18
Section 8.1 Ratification of Indenture..........................18
Section 8.2 Trustee Not Responsible for Recitals...............18
Section 8.3 New York Law to Govern.............................18
Section 8.4 Separability.......................................18
Section 8.5 Counterparts.......................................19
Section 8.6 Provisions of Base Indenture Not Applicable........19
Article IX REMARKETING.........................................19
Section 9.1 Initial Remarketing Procedures.....................19
Section 9.2 Secondary Remarketing Procedures...................21
FIRST SUPPLEMENTAL INDENTURE, dated as of February 6, 2002 (the
"First Supplemental Indenture"), between Gabelli Asset Management Inc., a
New York corporation (the "Company"), and The Bank of New York, a New York
Banking corporation, as trustee (the "Trustee").
WHEREAS, the Company executed and delivered the Indenture dated as
of February 6, 2002 (the "Base Indenture") to the Trustee to provide for
the issuance of the Company's unsecured debt securities, debentures, notes,
bonds or other evidence of indebtedness (the "Securities"), in an unlimited
aggregate principal amount to be issued from time to time in one or more
series as might be determined by the Company under the Base Indenture; and
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of a new series of its Securities
to be known as the Company's 6% Senior Notes due February 17, 2007 (the
"Notes"), the form and terms of such Notes and the terms, provisions and
conditions thereof to be set forth as provided in the Base Indenture and
this First Supplemental Indenture (together, the "Indenture"); and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid, binding and enforceable
instrument in accordance with its terms, and to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee, the
valid, binding and enforceable obligations of the Company, and all acts and
things necessary have been done and performed to make this First
Supplemental Indenture enforceable in accordance with its terms, and the
execution and delivery of this First Supplemental Indenture has been duly
authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of
the Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Base Indenture, the form and substance of the Notes and the
terms, provisions and conditions thereof, the Company covenants and agrees
with the Company as follows:
Article I
DEFINITIONS
Section 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Base 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) headings are for convenience of reference only and do not affect
interpretation;
(e) the following terms have the meanings given to them in the
Purchase Contract Agreement (i) Agent; (ii) Applicable Principal Amount, (iii)
Authorized Newspaper; (iv) Cash Settlement; (v) Clearing Agency; (vi) Clearing
Agency Participant; (vii) Growth PRIDES; (viii) Income PRIDES; (ix) Initial
Remarketing; (x) Initial Remarketing Date; (xi) Purchase Agreement, (xii)
Purchase Contract; (xiii) Quotation Agent; (xiv) Redemption Price; (xv) Reset
Agent; (xvi) Reset Announcement Date; (xvii) Reset Rate; (xviii) Reset Spread;
(xix) Secondary Remarketing; (xx) Secondary Remarketing Date; (xxi) Tax Event;
(xxii) Treasury Portfolio; (xxiii) Treasury Portfolio Purchase Price; (xxiv)
Two-Year Benchmark Treasury; and (xxv) Two and One-Quarter Year Benchmark
Treasury;
(f) the following terms have the meanings given to them in this
Section 1.1(f):
"Failed Initial Remarketing" shall have the meaning set
forth in Section 9.1(g).
"Failed Secondary Remarketing" shall have the meaning set
forth in Section 9.2(h).
"Global Notes" shall have the meaning set forth in
Section 2.4.
"Maturity Date" shall have the meaning specified in
Section 2.2.
"Minimum Initial Remarketing Price" has the meaning
specified in the Remarketing Agreement.
"Notes" shall have the meaning specified in the preamble
hereto.
"Note Repayment Price'" shall have the meaning set forth in
Section 3.4.
"Pledge Agreement" means the Pledge Agreement dated as of
February 6, 2002 among the Company, JPMorgan Chase Bank, as
collateral agent, custodial agent and securities intermediary (the
"Collateral Agent") and The Bank of New York, as purchase contract
agent and attorney-in-fact.
"Purchase Contract Agreement" means the Purchase Contract
Agreement dated as of February 6, 2002, among the Company and The
Bank of New York, as purchase contract agent.
"Purchase Contract Settlement Date" means February 17, 2005.
"Put Option" shall have the meaning set forth in
Section 3.4.
"Put Option Exercise Date" shall have the meaning set forth
in Section 3.4.
"Regular Record Date" means, with respect to any Interest
Payment Date for the Notes, the close of business on the first day of
the month in which such Interest Payment Date falls.
"Remarketing Agent" means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated or any successor thereto or replacement
Remarketing Agent under the Remarketing Agreement.
"Remarketing Agreement" means the Remarketing Agreement,
dated as of February 6, 2002, between the Remarketing Agent and The
Bank of New York, as purchase contract agent and attorney-in-fact.
"Reset Effective Date" means (i) November 17, 2004 in case
the interest rate is reset on the Initial Remarketing Date or (ii)
the Purchase Contract Settlement Date, in case the interest rate is
reset on the Secondary Remarketing Date.
The terms "Indenture," "Base Indenture," and "Notes" shall
have the respective meanings set forth in the recitals to this First
Supplemental Indenture and the paragraph preceding such recitals.
Article II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1 Designation and Principal Amount.
There is hereby authorized a series of Securities designated the 6%
Senior Notes due February 17, 2007 (the "Notes"), limited (except as otherwise
provided in Article II of the Base Indenture) in aggregate principal amount to
$95,000,000. The Notes may be issued from time to time upon written order of
the Company for the authentication and delivery of Notes pursuant to Section
2.04 of the Base Indenture.
Section 2.2 Maturity.
The date upon which the Notes shall become due and payable at final
maturity, together with any accrued and unpaid interest, is February 17, 2007
(the "Maturity Date").
Section 2.3 Form, Payment and Appointment.
Except as provided in Section 2.4, the Notes shall be issued in fully
registered, certificated form, bearing identical terms. Principal of and
premium, if any, and interest on the Notes will be payable, the transfer of
such Notes will be registrable and such Notes will be exchangeable for Notes
bearing identical terms and provisions at the office or agency of the Company
maintained for such purpose as described below; provided, however, that
payment of interest may be made at the option of the Company by check mailed
to the Holder at such address as shall appear in the Debt Securities Register
or by wire transfer to an account appropriately designated by the Holder
entitled to payment.
The Company hereby designates the Borough of Manhattan, The City of
New York as the place of payment ("Place of Payment") for the Notes, and the
office or agency maintained by the Company in such Place of Payment for the
purposes contemplated by this Section 2.3 shall initially be the Corporate
Trust Office of the Trustee.
The Registrar, transfer agent and Paying Agent for the Notes shall be
JPMorgan Chase Bank.
The Notes shall be issuable in denominations of $25 and integral
multiples of $25 in excess thereof.
The Notes may be issued, in whole or in part, in permanent global
form and, if issued in permanent global form, the Depositary shall be The
Depository Trust Company or such other depositary as any officer of the
Company may from time to time designate.
Section 2.4 Global Notes.
(a) Any Notes that are no longer part of Income PRIDES will be issued
initially in the form of one or more Global Securities (the "Global Notes")
registered in the name of the Depositary or its nominee. Unless and until it
is exchanged for the Notes in registered form, such Global Notes may be
transferred, in whole but not in part, only to the Clearing Agency or a
nominee of the Clearing Agency, or to a successor Clearing Agency selected or
approved by the Company or to a nominee of such successor Clearing Agency.
(b) If at any (i) time the Clearing Agency notifies the Company that
it is unwilling or unable to continue as a Clearing Agency for the Global
Notes and no successor Clearing Agency shall have been appointed within 90
days after such notification, (ii) the Clearing Agency at any time ceases to
be a clearing agency registered under the Securities Exchange Act of 1934 at
any time the Clearing Agency is required to be so registered to act as such
Clearing Agency and no successor Clearing Agency shall have been appointed
within 90 days after the Company becoming aware of the Clearing Agency's
ceasing to be so registered, (iii) the Company, in its sole discretion,
determines that the Global Notes shall be so exchangeable or (iv) there shall
have occurred and be continuing an Event of Default, the Company will execute,
and subject to Article II of the Base Indenture, the Trustee, upon written
notice from the Company, will authenticate and deliver the Notes in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Note in
exchange for such Global Note.
Upon exchange of the Global Note for such Notes in definitive
registered form without coupons, in authorized denominations, the Global Note
shall be cancelled by the Trustee. Such Notes in definitive registered form
issued in exchange for the Global Note shall be registered in such names and
in such authorized denominations as the Clearing Agency, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Clearing Agency for delivery to the Persons in whose names such Securities are
so registered.
Section 2.5 Interest.
(a) The Note will bear interest initially at the rate of 6 % per year
(the "Coupon Rate") from the original date of issuance through and including
the day immediately preceding the Reset Effective Date and at the Reset Rate
thereafter until the principal thereof is paid or duly made available for
payment and shall bear interest, to the extent permitted by law, compounded
quarterly, on any overdue principal and premium, if any, and on any overdue
installment of interest at the Coupon Rate through and including the day
immediately preceding the Reset Effective Date and at the Reset Rate
thereafter, payable quarterly in arrears on February 17, May 17, August 17 and
November 17 of each year (each, an "Interest Payment Date") commencing on May
17, 2002, to the Person in whose name such Note, or any predecessor Note, is
registered at the close of business on the Regular Record Date for such
interest installment.
(b) The interest rate on the Notes will be reset on the Initial
Remarketing Date to the applicable Reset Rate (which Reset Rate will be
effective on and after November 17, 2004) except in the event of a Failed
Initial Remarketing. In the event of a Failed Initial Remarketing, the
interest rate on the Notes will be reset on the Secondary Remarketing Date to
the applicable Reset Rate (which Reset Rate will be effective on and after the
Purchase Contract Settlement Date). On the applicable Reset Announcement Date,
the applicable Reset Spread and the Two-Year Benchmark Treasury or Two and
One-Quarter Year Benchmark Treasury, as applicable, will be announced by the
Company. On the Business Day immediately following such Reset Announcement
Date, the Holders of Notes will be notified of such Reset Spread and Two-Year
Benchmark Treasury or Two and One-Quarter Year Benchmark Treasury, as
applicable, by the Company. Such notice shall be sufficiently given to such
Holders of Notes if published in an Authorized Newspaper.
(c) Not later than seven calendar days nor more than 15 calendar days
immediately preceding the applicable Reset Announcement Date, the Company will
request that the Clearing Agency or its nominee (or any successor Clearing
Agency or its nominee) notify the Holders of Notes of such Reset Announcement
Date and, in the case of a Secondary Remarketing, the procedures to be
followed by such holders of Notes wishing to settle the related Purchase
Contracts with separate cash on the Business Day immediately preceding the
Purchase Contract Settlement Date.
(d) The amount of interest payable for any period will be computed on
the basis of a 360-day year consisting of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period other than a full quarterly period for which interest is computed will
be computed on the basis of the actual number of days elapsed in such a 90-day
period. In the event that any date on which interest is payable on the Notes
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 (and without any
interest or other payment in respect of any such delay), 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.
Article III
REDEMPTION OF THE NOTES
Section 3.1 Tax Event Redemption.
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem the Notes in whole (but not in part) at any time at a price per
Note equal to the Redemption Price. Installments of interest on Notes which
are due and payable on or prior to the date of redemption (the "Tax Event
Redemption Date") will be payable to the Holders of the Notes registered as
such at the close of business on the Regular Record Date. If, following the
occurrence of a Tax Event prior to the Purchase Contract Settlement Date, the
Company exercises its option to redeem the Notes, the Company shall appoint
the Quotation Agent to assemble the Treasury Portfolio in consultation with
the Company. Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the Tax Event Redemption Date to each registered
Holder of the Notes to be repaid at its registered address. Unless the Company
defaults in payment of the Redemption Price, on and after the Tax Event
Redemption Date interest shall cease to accrue on the Notes.
Section 3.2 Redemption Procedures for Notes.
Payment of the Redemption Price to each Holder of Notes shall be made
by the Company, no later than 12:00 noon, New York City time, on the Tax Event
Redemption Date, by check or wire transfer in immediately available funds at
such place and to such account as may be designated by each such Holder of
Notes, including the Trustee or the Collateral Agent, as the case maybe. If
the Trustee holds immediately available funds sufficient to pay the Redemption
Price of the Notes, then, on such Tax Event Redemption Date, such Notes will
cease to be outstanding and interest thereon will cease to accrue, whether or
not such Notes have been received by the Company, and all other rights of the
Holder in respect of the Notes shall terminate and lapse (other than the right
to receive the Redemption Price upon delivery of such Notes but without
interest on such Redemption Price).
Section 3.3 No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
Section 3.4 Option to Put Notes upon Failed Secondary Remarketing.
If a Failed Secondary Remarketing (as described in Section 5.5(b) of
the Purchase Contract Agreement and incorporated herein by reference) has
occurred, holders of Notes who hold such Notes following the Purchase Contract
Settlement Date shall have the right (the "Put Option") to put such Notes to
the Company on March 31, 2005 (the "Put Option Exercise Date"), upon at least
three Business Days prior notice, at a repayment price equal to the principal
amount of such Notes plus an amount equal to the accrued and unpaid interest
thereon to the date of payment (the "Note Repayment Price").
Section 3.5 Repurchase Procedure for Notes.
(a) In order for the Notes to be repurchased on the Put Option
Exercise Date, the Trustee must receive on or prior to 5:00 p.m. New York City
time on the third Business Day immediately preceding the Put Option Exercise
Date, at its Corporate Trust Office or at an office or agency maintained by
the Company in the Borough of Manhattan, The City of New York as contemplated
by Section 2.3 hereof, the Notes to be repurchased with the form entitled
"Option to Elect Repayment" on the reverse of or otherwise accompanying such
Notes duly completed. Any such notice received by the Trustee shall be
irrevocable. All questions as to the validity, eligibility (including time of
receipt) and acceptance of the Notes for repayment shall be determined by the
Company, whose determination shall be final and binding.
(b) Payment of the Note Repayment Price shall be made through the
Trustee, subject to the Trustee's receipt of payment from the Company in
accordance with the terms of the Indenture, no later than 12:00 noon, New York
City time, on the Put Option Exercise Date, and to such account as may be
designated by the applicable Holder. If the Trustee holds immediately
available funds sufficient to pay the Note Repayment Price of Notes presented
for repayment, then, immediately prior to the close of business on the Put
Option Exercise Date, such Notes will cease to be outstanding and Interest
thereon will cease to accrue, whether or not such Notes have been received by
the Company, and all other rights of the Holder in respect of the Notes,
including the Holder's right to require the Company to repay such Notes, shall
terminate and lapse (other than the right to receive the Note Repayment Price
upon delivery of such Notes but without interest on such Note Repayment
Price). Neither the Trustee nor the Company will be required to register or
cause to be registered the transfer of any Note for which repayment has been
elected.
Article IV
[Article IV RESERVED]
Article V
NOTICE
Section 5.1 Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Notes.
Notwithstanding any of the provisions of the Base Indenture and this First
Supplemental Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Notes; provided, however, that if the
Trustee shall not have received the notice provided for in this Article V at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any Note),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the
same to the purposes for which they were received, and shall not be affected
by any notice to the contrary that may be received by it within two Business
Days prior to such date.
Article VI
FORM OF NOTE
Section 6.1 Form of Note.
The Notes and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms, with such
changes therein as the officers of the Company executing the Notes (by manual
or facsimile signature) may approve, such approval to be conclusively
evidenced by their execution thereof:
(FORM OF FACE OF NOTE)
IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - THIS NOTE IS A GLOBAL NOTE WITHIN
THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF THE DEPOSITORY TRUST
COMPANY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TRUST COMPANY
TO A NOMINEE OF THE DEPOSITORY TRUST COMPANY OR BY A NOMINEE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITORY TRUST COMPANY OR ANOTHER NOMINEE OF THE
DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR CLEARING AGENCY OR TO A NOMINEE OF
SUCH SUCCESSOR) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE
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.
CUSIP No.________________
$------------------------
GABELLI ASSET MANAGEMENT INC.
SENIOR NOTE
DUE 2007
GABELLI ASSET MANAGEMENT INC., a New York corporation (the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to____________________, or registered assigns, the principal sum
of_________________ Dollars ($___________) on February 17, 2007 (such date
is hereinafter referred to as the "Maturity Date"), and to pay interest on
said principal sum from February 6, 2002 or from the next recent date to
which interest has been paid or duly provided for, quarterly in arrears on
February 17, May 17, August 17 and November 17 of each year (each such
date, an "Interest Payment Date"), commencing on May 17, 2002 initially at
the rate of 6.00 % per year through and including the day immediately
preceding the Reset Effective Date and at the Reset Rate thereafter until
the principal hereof shall have been paid or duly made available for
payment and, to the extent permitted by law, to pay interest, compounded
quarterly, on any overdue principal and premium, if any, and on any overdue
installment of interest at the rate per year of 6.00 % through and
including the day immediately preceding the Reset Effective Date and at the
Reset Rate thereafter. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year consisting of
twelve 30-day months and, except as provided in the Indenture (as defined
below), the amount of interest payable for any period shorter than a full
quarterly period for which interest is computed will be computed on the
basis of the actual number of days elapsed in such 90-day period. In the
event that any date on which interest is payable on this Note 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 (and without any interest or
other payment in respect of any such delay), 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 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 Note (or one or more predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest installment which shall be the close of business on the first day
of the month in which such Interest Payment Date falls. Any such interest
installment not punctually paid or duly provided for on any Interest
Payment Date shall forthwith cease to be payable to the registered Holders
at the close of business on such Regular Record Date and may be paid to the
Person in whose name this Note (or one or more predecessor Securities) 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 of this series of Notes 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, if any, on which the Notes 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 (and premium, if any) and the interest
on this Note shall be payable at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New
York 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 Debt Security Register or by wire transfer to an
account appropriately designated by the Holder entitled thereto.
The indebtedness evidenced by this Note is, to the extent provided
in the Indenture, senior and unsecured and will rank equal in right of
payment to all other senior unsecured obligations of the Company.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to or be valid or obligatory for any purpose until the
Certificate of Authentication shall have been signed by or on behalf of the
Trustee.
The provisions of this Note 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.
Dated: February 6, 2002
GABELLI ASSET MANAGEMENT INC.,
as Issuer
By:
------------------------------------
Name:
Title:
Attest:
By:
-----------------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to
in the within-mentioned Indenture.
Dated February 6, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
as Trustee
By
-----------------------------------------------------------
Authorized Signatory
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Securities
of the Company (herein sometimes referred to as the "Notes"), issued and to be
issued in one or more series under and pursuant to an Indenture dated as of
February 6, 2002 (the "Base Indenture") duly executed and delivered between
the Company and The Bank of New York , as trustee (the "Trustee," which term
includes any successor trustee under the Indenture), as supplemented by the
First Supplemental Indenture, dated February 6, 2002 between the Company and
the Trustee, 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 Notes. By the terms of the Indenture, the Debt
Securities 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 series of Debt Securities is limited in aggregate principal amount as
specified in said First Supplemental Indenture.
If a Tax Event shall occur and be continuing, the Company
may, at its option, redeem the Notes in whole (but not in part) at any time at
a price per Note equal to the Redemption Price. The Redemption Price shall be
paid to each Holder of the Notes by the Company, no later than 12:00 noon, New
York City time, on the Tax Event Redemption Date, by check or wire transfer in
immediately available funds, at such place and to such account as may be
designated by each such Holder.
The Notes are not entitled to the benefit of any sinking
fund.
If a Failed Secondary Remarketing (as described in Section
5.5(b) of the Purchase Contract Agreement and incorporated herein by
reference) has occurred, each Holder who holds such Notes on the day
immediately following the Purchase Contract Settlement Date shall have the
right (the "Put Option") to put such Notes to the Company, on March 31, 2005
(the "Put Option Exercise Date"), upon at least three Business Day's prior
notice, at a repayment price equal to the principal amount of this Note plus
an amount equal to the accrued and unpaid interest thereon to the date of
payment (the "Note Repayment Price").
In order for the Notes to be so repurchased, the Trustee
must receive, on or prior to 5:00 p.m. New York City Time on the third
Business Day immediately preceding the Put Option Exercise Date, at its
Corporate Trust Office, or at an office or agency maintained by the Company in
the Borough of Manhattan, The City of New York as contemplated by Section 2.3
of the First Supplemental Indenture, the Notes to be repurchased with the form
entitled "Option to Elect Repayment" on the reverse of or otherwise
accompanying such Notes duly completed. Any such notice received by the
Trustee shall be irrevocable. All questions as to the validity, eligibility
(including time of receipt) and acceptance of the Notes for repayment shall be
determined by the Company, whose determination shall be final and binding. The
payment of the Note Repayment Price in respect of such Notes shall be made no
later than 12:00 noon, New York City time, on the Put Option Exercise Date.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Notes may
be declared, and upon such declaration shall become, due and payable (or, in
certain circumstances shall ipso facto become due and payable), in the manner,
with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting, with certain
exceptions therein provided, the Company and the Trustee, with the consent of
the Holders of not less than a majority in aggregate principal amount of the
Outstanding Debt Securities of each series affected to execute supplemental
indentures for the purpose of, among other things, adding any provisions to or
changing or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying the rights of the Holders of the Debt
Securities. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Debt Securities of any series at
the time Outstanding, on behalf of all of the Holders of all Debt Securities
of such series, to waive a Default or Event of Default with respect to such
series and its consequences, except a Default or Event of Default in the
payment of the principal of or premium, if any, or interest on any of the Debt
Securities of such series or in respect of a covenant or other provision
which, under the terms of the Indenture, cannot be modified or amended without
the consent of the Holder of each Outstanding Debt Security of such series
affected. Any such consent or waiver by the registered Holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note
issued in exchange for 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 Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Note at the time and place and at the
rate and in the money herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Note is transferable by the registered
Holder hereof on the Debt Security Register of the Company, upon surrender of
this Note for registration of transfer at the office or agency of the Company
maintained for such purpose in the Borough of Manhattan, The City of New York,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes 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 transfer tax or similar
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of
this Note, the Company, the Trustee, any Paying Agent and the Registrar may
deem and treat the registered Holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any Paying Agent nor any 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 Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, 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 Indenture imposes certain limitations on the ability of
the Company to, among other things, merge or consolidate with any other Person
or sell, assign, transfer or lease all or substantially all of its properties
or assets, and requires that the Company comply with certain further
covenants. All such covenants and limitations are subject to a number of
important qualifications and exceptions. The Company must report periodically
to the Trustee on compliance with the covenants in the Indenture.
The Notes of this series are issuable only in registered
form without coupons in denominations of $25 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Notes are exchangeable for a like aggregate principal
amount of Notes of a different authorized denomination, as requested by the
Holder surrendering the same.
All terms used in this Note that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
The Notes are subject to the covenants set forth in the
Indenture.
This Note shall be governed by and construed in accordance
with the law of the State of New York.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Company to repay $____ principal amount of the within Note, pursuant to
its terms, on the "Put Option Exercise Date," together with any interest
thereon accrued but unpaid to the date of repayment, to the undersigned at:
(Please print or type name and address of the undersigned)
and to issue to the undersigned, pursuant to the terms of the Indenture, a new
Note or Notes representing the remaining aggregate principal amount of this
Note.
For this Option to Elect Repayment to be effective, this Note with the Option
to Elect Repayment duly completed must be received by the Trustee at c/o
Reorganization Unit, The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, no later than 5:00 p.m. on the third Business Day immediately
preceding March 31, 2005.
Dated: ____________ Signature:
--------------------------------
Signature Guarantee:
----------------------
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Note without alteration or
enlargement or any change whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Date: ____________________
Signature:
--------------------------------
Signature Guarantee:
--------------------------------
(Sign exactly as your name appears on the other side of this Note)
Article VII
ORIGINAL ISSUE OF DISCOUNT
Section 7.1 Original Issue of Discount.
To the extent that such duty is not performed by the Purchase
Contract Agent pursuant to Section 7.14 of the Purchase Contract Agreement,
the Company shall file with the Trustee promptly at the end of each calendar
year (i) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on the outstanding Notes
as of the end of the year and (ii) such other specific information relating to
such original issue discount as may then be relevant under the Internal
Revenue Code of 1986, as amended from time to time.
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 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 validity or sufficiency
of this First Supplemental Indenture.
Section 8.3 New York Law to Govern.
THIS FIRST SUPPLEMENTAL INDENTURE, EACH NOTE AND EACH COUPON SHALL BE
DEEMED TO BE NEW YORK CONTRACTS, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE (WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OF LAW).
Section 8.4 Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, then, to the extent
permitted by law, such invalidity, illegality or unenforceability shall not
affect any other provisions of this First Supplemental Indenture or of the
Notes, but this First Supplemental Indenture and the Notes shall be construed
as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
Section 8.5 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.
Section 8.6 Provisions of Base Indenture Not Applicable.
The provisions of Article XI of the Base Indenture shall not apply to
the Notes.
Article IX
REMARKETING
Section 9.1 Initial Remarketing Procedures.
(a) The Company will request, not later than seven nor more than 15
calendar days prior to the Initial Remarketing Date that the Clearing Agency
notify the Holders of the Notes, the Holders of Income PRIDES and the Holders
of Growth PRIDES of the Initial Remarketing.
(b) Not later than 5:00 P.M., New York City time, on the second
Business Day immediately preceding the Initial Remarketing Date, each Holder
of the Notes not constituting components of Income PRIDES may elect to have
Notes held by such Holder remarketed. Holders of Notes that are not a
component of Income PRIDES shall give notice of their election to have such
Notes remarketed to the Collateral Agent pursuant to the Pledge Agreement. Any
such notice shall be irrevocable after 5:00 P.M., New York City time, on the
second Business Day immediately preceding the Initial Remarketing Date and may
not be conditioned upon the level at which the Reset Rate is established.
Promptly after 5:30 P.M., New York City time, on such second Business Day, the
Trustee, based on the notices received by it prior to such time (including
notices from the Purchase Contract Agent as to Purchase Contracts for which
Cash Settlement has been elected), shall notify the Company and the
Remarketing Agent of the number of Notes to be tendered for remarketing. Under
Section 5.4 of the Purchase Contract Agreement, Notes that constitute
components of Income PRIDES will be remarketed as provided therein and in this
Section 9.1. The Notes constituting components of Income PRIDES shall be
deemed tendered, notwithstanding any failure by the Holder of such Income
PRIDES to deliver or properly deliver such Notes to the Remarketing Agent for
purchase.
(c) The right of each Holder to have Notes tendered for Initial
Remarketing or the Secondary Remarketing, as the case may be, shall be limited
to the extent that (i) the Remarketing Agent conducts an Initial Remarketing
and, in the event of a Failed Remarketing, a Secondary Remarketing pursuant to
the terms of the Remarketing Agreement, (ii) Notes tendered have not been
called for redemption, (iii) the Remarketing Agent is able to find a purchaser
or purchasers for tendered Notes at a price of not less than the Minimum
Initial Remarketing Price, in the case of the Initial Remarketing, and 100% of
the principal amount thereof, in case of the Secondary Remarketing, and (iv)
such purchaser or purchasers deliver the purchase price therefor to the
Remarketing Agent as and when required. Each Holder of Notes that are
remarketed in a Successful Initial Remarketing agrees that a remarketing fee
in an amount set forth in the Remarketing Agreement shall be deducted from the
proceeds of the remarketing.
(d) On the Initial Remarketing Date, the Remarketing Agent shall use
reasonable efforts to remarket, at a price per Note such that the aggregate
price for the Applicable Principal Amount of Notes is equal to approximately
100.5% of the Treasury Portfolio Purchase Price, Notes tendered or deemed
tendered for purchase.
(e) If there are no Income PRIDES outstanding and none of the Holders
elect to have Notes held by them remarketed, the Reset Rate shall be the rate
determined by the Reset Agent, subject to the terms of the Remarketing
Agreement, as the rate that would have been established had a remarketing been
held on the Initial Remarketing Date.
(f) If the Remarketing Agent has determined that it will be able to
remarket all Notes tendered or deemed tendered prior to 4:00 P.M., New York
City time, on the Initial Remarketing Date, the Reset Agent, subject to the
terms of the Remarketing Agreement, shall determine the Reset Rate.
(g) If, by 4:00 P.M., New York City time, on the Initial Remarketing
Date, (i) the Remarketing Agent is unable to remarket all Notes tendered or
deemed tendered for purchase, at a price per Note such that the aggregate
price for the Applicable Principal Amount of Notes is equal to or at least
100% of the Treasury Portfolio Purchase Price, or (ii) if the Initial
Remarketing shall not have occurred because a condition precedent to the
Remarketing shall not have been fulfilled, a failed remarketing ("Failed
Initial Remarketing") shall be deemed to have occurred and the Remarketing
Agent shall so advise by telephone the Collateral Agent, the Purchase Contract
Agent, Company, Trustee, and Clearing Agency. If requested by the Collateral
Agent, the Purchase Contract Agent, the Trustee or the Clearing Agency, the
Company shall confirm such advice in writing.
(h) By approximately 4:30 P.M., New York City time, on the Initial
Remarketing Date, provided that there has not been a Failed Initial
Remarketing, the Remarketing Agent shall advise, by telephone (i) the
Collateral Agent, the Purchase Contract Agent, the Company, Trustee, and
Clearing Agency of the Reset Rate determined in the Initial Remarketing and
the aggregate principal amount of Notes sold in the Initial Remarketing, (ii)
each purchaser (or the Clearing Agency Participant thereof) of the Reset Rate
and the aggregate principal amount of Notes such purchaser is to purchase and
(iii) each purchaser to give instructions to its Clearing Agency Participant
to pay the purchase price on November 17, 2004 in same day funds against
delivery of the Notes purchased through the facilities of the Clearing Agency.
(i) In accordance with the Clearing Agency's normal procedures, on
November 17, 2004, the transactions described above with respect to each Note
tendered for purchase and sold in the Initial Remarketing shall be executed
through the Clearing Agency, and the accounts of the respective Clearing
Agency Participants shall be debited and credited and such Notes delivered by
book entry as necessary to effect purchases and sales of such Notes. The
Clearing Agency shall make payment in accordance with its normal procedures.
(j) If any Holder selling Notes in the Initial Remarketing fails to
deliver such Notes, the Clearing Agency Participant of such selling Holder and
of any other Person that was to have purchased Notes in the Initial
Remarketing may deliver to any such other Person an aggregate principal amount
of Notes that is less than the aggregate principal amount of Notes that
otherwise was to be purchased by such Person. In such event, the aggregate
principal amount of Notes to be so delivered shall be determined by such
Clearing Agency Participant, and delivery of such lesser aggregate principal
amount of Notes shall constitute good delivery.
(k) The Remarketing Agent is not obligated to purchase any Notes in
the Initial Remarketing or otherwise. Neither the Trustee, the Purchase
Contract Agent, the Company nor the Remarketing Agent shall be obligated in
any case to provide funds to make payment upon tender of Notes for
remarketing.
(l) The tender and settlement procedures set forth in this Section
9.1, including provisions for payment by purchasers of Notes in the Initial
Remarketing, shall be subject to modification, notwithstanding any provision
to the contrary set forth herein, to the extent required by the Clearing
Agency or if the book-entry system is no longer available for the Notes at the
time of the Initial Remarketing, to facilitate the tendering and remarketing
of Notes in certificated form. In addition, the Remarketing Agent may,
notwithstanding any provision to the contrary set forth herein, modify the
settlement procedures set forth herein in order to facilitate the settlement
process.
(m) Anything herein to the contrary notwithstanding, the Reset Rate
shall in no event exceed the maximum rate permitted by applicable law and, as
provided in the Remarketing Agreement, neither the Remarketing Agent nor the
Reset Agent shall have any obligation to determine whether there is any
limitation under applicable law on the Reset Rate or, if there is any such
limitation, the maximum permissible Reset Rate on the Notes and they shall
rely solely upon written notice from the Company (which the Company agrees to
provide prior to the 10th Business Day before November 17, 2004) as to whether
or not there is any such limitation and, if so, the maximum permissible Reset
Rate.
Section 9.2 Secondary Remarketing Procedures.
(a) If a Failed Initial Remarketing has occurred, the Company will
request, not later than seven nor more than 15 calendar days prior to the
Secondary Remarketing Date that the Clearing Agency notify the Holders of the
Notes of the Secondary Remarketing and of the procedures that must be followed
if a Holder of Notes wishes to exercise such Holder's rights with respect to
the Put Option if there is a Failed Secondary Remarketing.
(b) If a Failed Initial Remarketing has occurred, not later than 5:00
P.M., New York City time, on the second Business Day immediately preceding the
Secondary Remarketing Date, each Holder of the Notes may elect to have Notes
held by such Holder remarketed. Under Section 5.5 of the Purchase Contract
Agreement, Holders of Income PRIDES that do not give notice of intention to
make a Cash Settlement of their related Purchase Contracts shall be deemed to
have consented to the disposition of the Notes constituting a component of
such Income PRIDES. Holders of Notes that are not a component of Income PRIDES
shall give notice of their election to have such Notes remarketed to the
Custodial Agent pursuant to the Pledge Agreement. Any such notice shall be
irrevocable after 5:00 P.M., New York City time, on the second Business Day
immediately preceding the Secondary Remarketing Date and may not be
conditioned upon the level at which the Reset Rate is established. Promptly
after 5:30 P.M., New York City time, on such second Business Day, the Trustee,
based on the notices received by it prior to such time (including notices from
the Purchase Contract Agent as to Purchase Contracts for which Cash Settlement
has been elected), shall notify the Company and the Remarketing Agent of the
number of Notes to be tendered for remarketing. Under Section 5.5 of the
Purchase Contract Agreement, the Notes that constitute components of Income
PRIDES will be remarketed as provided therein and in this Section 9.2.
(c) If any Holder of Income PRIDES does not give a notice of its
intention to make a Cash Settlement or gives a notice of election to tender
Notes as described in Section 9.2(b), the Notes of such Holder shall be deemed
tendered, notwithstanding any failure by such Holder to deliver or properly
deliver such Notes to the Remarketing Agent for purchase.
(d) The right of each Holder to have Notes tendered for purchase
shall be limited to the extent that (i) the Remarketing Agent conducts a
remarketing pursuant to the terms of the Remarketing Agreement, (ii) Notes
tendered have not been called for redemption, (iii) the Remarketing Agent is
able to find a purchaser or purchasers for tendered Notes at a price of not
less than 100% of the principal amount thereof, and (iv) such purchaser or
purchasers deliver the purchase price therefor to the Remarketing Agent as and
when required. Each Holder of Notes that are remarketed in a Successful
Secondary Remarketing agrees that a remarketing fee in an amount set forth in
the Remarketing Agreement shall be deducted from the proceeds of the
remarketing.
(e) If a Failed Initial Remarketing has occurred, on the Secondary
Remarketing Date, the Remarketing Agent shall use reasonable efforts to
remarket, at a price equal to approximately 100.5% of the aggregate principal
amount thereof, Notes tendered or deemed tendered for purchase.
(f) If none of the Holders elect or are deemed to have elected to
have Notes held by them remarketed, the Reset Rate shall be the rate
determined by the Reset Agent, subject to the terms of the Remarketing
Agreement, as the rate that would have been established had a remarketing been
held on the Secondary Remarketing Date.
(g) If the Remarketing Agent has determined that it will be able to
remarket all Notes tendered or deemed tendered prior to 4:00 P.M., New York
City time, on the Secondary Remarketing Date, the Reset Agent shall, subject
to the terms of the Remarketing Agreement, determine the Reset Rate.
(h) If, by 4:00 P.M., New York City time, on the Secondary
Remarketing Date, the Remarketing Agent is unable to remarket all Notes
tendered or deemed tendered for purchase or if the Secondary Remarketing shall
not have occurred because a condition precedent to the Secondary Remarketing
shall not have been fulfilled, a failed remarketing ("Failed Secondary
Remarketing") shall be deemed to have occurred and the Remarketing Agent shall
so advise by telephone the Collateral Agent, Company, Trustee, Purchase
Contract Agent and Clearing Agency. If requested by the Collateral Agent, the
Purchase Contract Agent, the Trustee or the Clearing Agency, the Company shall
confirm such advice in writing.
(i) By approximately 4:30 P.M., New York City time, on the Secondary
Remarketing Date, provided that there has not been a Failed Secondary
Remarketing, the Remarketing Agent shall advise, by telephone (i) the
Collateral Agent, the Company, Trustee, Purchase Contract Agent and Clearing
Agency of the Reset Rate determined in the Secondary Remarketing and the
aggregate principal amount of Notes sold in the Secondary Remarketing, (ii)
each purchaser (or the Clearing Agency Participant thereof) of the Reset Rate
and the aggregate principal amount of Notes such purchaser is to purchase and
(iii) each purchaser to give instructions to its Clearing Agency Participant
to pay the purchase price on the Purchase Contract Settlement Date in same day
funds against delivery of the Notes purchased through the facilities of the
Clearing Agency.
(j) In accordance with the Clearing Agency's normal procedures, on
the Purchase Contract Settlement Date, the transactions described above with
respect to each Note tendered for purchase and sold in the Secondary
Remarketing shall be executed through the Clearing Agency, and the accounts of
the respective Clearing Agency Participants shall be debited and credited and
such Notes delivered by book entry as necessary to effect purchases and sales
of such Notes. The Clearing Agency shall make payment in accordance with its
normal procedures.
(k) If any Holder selling Notes in the Secondary Remarketing fails to
deliver such Notes, the Clearing Agency Participant of such selling Holder and
of any other Person that was to have purchased Notes in the Secondary
Remarketing may deliver to any such other Person an aggregate principal amount
of Notes that is less than the aggregate principal amount of Notes that
otherwise was to be purchased by such Person. In such event, the aggregate
principal amount of Notes to be so delivered shall be determined by such
Clearing Agency Participant, and delivery of such lesser aggregate principal
amount of Notes shall constitute good delivery.
(l) The Remarketing Agent is not obligated to purchase any Notes in
the Secondary Remarketing or otherwise. Neither the Trustee, the Purchase
Contract Agent, the Company nor the Remarketing Agent shall be obligated in
any case to provide funds to make payment upon tender of Notes for
remarketing.
(m) The tender and settlement procedures set in this Section 9.2,
including provisions for payment by purchasers of Notes in the Secondary
Remarketing, shall be subject to modification, notwithstanding any provision
to the contrary set forth herein, to the extent required by the Clearing
Agency or if the book-entry system is no longer available for the Notes at the
time of the Secondary Remarketing, to facilitate the tendering and remarketing
of Notes in certificated form. In addition, the Remarketing Agent may,
notwithstanding any provision to the contrary set forth herein, modify the
settlement procedures set forth herein in order to facilitate the settlement
process.
(n) Anything herein to the contrary notwithstanding, the Reset Rate
shall in no event exceed the maximum rate permitted by applicable law and, as
provided in the Remarketing Agreement, neither the Remarketing Agent nor the
Reset Agent shall have any obligation to determine whether there is any
limitation under applicable law on the Reset Rate or, if there is any such
limitation, the maximum permissible Reset Rate on the Notes and they shall
rely solely upon written notice from the Company (which the Company agrees to
provide prior to the 10th Business Day before the Purchase Contract Settlement
Date) as to whether or not there is any such limitation and, if so, the
maximum permissible Reset Rate.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
GABELLI ASSET MANAGEMENT INC.,
as Issuer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
Attest:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President,
General Counsel and
Secretary
THE BANK OF NEW YORK ,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Assistant Vice President