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SUPPLEMENTAL INDENTURE NO. 1
BETWEEN
▇▇▇▇▇▇▇▇'▇ CORPORATION
AND
FIRST UNION NATIONAL BANK
Trustee
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Dated as of January 8, 1998
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SUPPLEMENTAL TO SENIOR DEBT SECURITIES INDENTURE
DATED AS OF OCTOBER 19, 1996
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▇▇▇▇▇▇▇▇'▇ CORPORATION
SUPPLEMENTAL INDENTURE NO. 1
Dated as of January 8, 1998
Series of 6 3/8% Debentures due 2028
$150,000,000
Supplemental Indenture No. 1, dated as of January 8, 1998,
between ▇▇▇▇▇▇▇▇'▇ CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (hereinafter
sometimes referred to as the "Company"), and FIRST UNION
NATIONAL BANK, a national banking association, authorized to
accept and execute trusts (hereinafter sometimes referred to as
the "Trustee").
W I T N E S S E T H :
WHEREAS, The Company and the Trustee have executed and
delivered a Senior Debt Securities Indenture dated as of October
19, 1996 (the "Indenture").
WHEREAS, Section 10.01 of the Indenture provides for the
Company, when authorized by the Board of Directors, and the
Trustee to enter into an indenture supplemental to the Indenture
to establish the form or terms of any series of Debt Securities
as permitted by Sections 2.01 and 2.02 of the Indenture.
WHEREAS, Sections 2.01 and 2.02 of the Indenture provide
for Debt Securities of any series to be established pursuant to
an indenture supplemental to the Indenture.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the series of Debt Securities provided for herein, it is
mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of such series of Debt Securities, as
follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS.
SECTION 1.01. This Supplemental Indenture No. 1
constitutes an integral part of the Indenture.
SECTION 1.02. For all purposes of this Supplemental
Indenture:
(1) Capitalized terms used herein without definition shall
have the meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and
Sections of this Supplemental Indenture No. 1; and
(3) The terms "hereof", "herein", "hereto", "hereunder"
and "herewith" refer to this Supplemental Indenture.
ARTICLE TWO
THE SERIES OF DEBT SECURITIES.
SECTION 2.01. There shall be a series of Debt Securities
designated the "6 3/8% Debentures due 2028" (the "Debentures").
The Debentures shall be limited to $150,000,000 aggregate
principal amount.
SECTION 2.02. The principal amount of the Debentures shall
be payable on January 8, 2028.
SECTION 2.03. The Debentures will be represented by a
global security (the "Global Security"). The Global Security
will be executed by the Company, authenticated by the Trustee
and deposited with, or on behalf of, The Depository Trust
Company (the "Depositary") and registered in the name of a
nominee of the Depositary. Except under circumstances described
below, the Debentures will not be issuable in definitive form.
Ownership of beneficial interests in the Global Security
will be limited to persons that have accounts with the
Depositary or its nominee ("participants") or persons that may
hold interests through participants. Ownership of a beneficial
interest in the Global Security will be shown on, and the
transfer of that beneficial interest will only be effected
through, records maintained by the Depositary or its nominee
(with respect to interests of participants) and on the records
of participants (with respect to interests of persons other than
participants).
So long as the Depositary or its nominee is the registered
owner of the Global Security, the Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of
the Debentures represented by the Global Security for all
purposes under the Indenture. Except as provided below, owners
of beneficial interests in the Global Security will not be
entitled to have Debentures represented by the Global Security
registered in their names, will not receive or be entitled to
receive physical delivery of Debentures in definitive form and
will not be considered the owners or Holders thereof under the
Indenture.
Principal and interest payments on Debentures represented
by the Global Security registered in the name of the Depositary
or its nominee will be made to the Depositary or its nominee, as
the case may be, as the registered owner of the Global Security.
If the Depositary notifies the Company that it is at any
time unwilling or unable to continue as Depositary or if at any
time the Depositary shall no longer be eligible to continue as
Depositary, the Company shall appoint a successor Depositary
with respect to the Debentures. If a successor Depositary for
the Debentures is not appointed by the Company within 90 days
from the date the Company receives such notice or becomes aware
of such ineligibility, the Company will execute, and the Trustee
will authenticate and deliver, Debentures in definitive form in
exchange for the entire Global Security. In addition, the
Company may at any time and in its sole discretion determine not
to have the Debentures represented by the Global Security and,
in such event, the Company will execute, and the Trustee will
authenticate and deliver, Debentures in definitive form in
exchange for the entire Global Security. In any such instance,
an owner of a beneficial interest in the Global Security will be
entitled to physical delivery in definitive form of Debentures
represented by the Global Security equal in principal amount to
such beneficial interest and to have such Debentures registered
in its name. Debentures so issued in definitive form will be
issued as registered Debentures in denominations of $1,000 and
integral multiples thereof, unless otherwise specified by the
Company.
Upon the exchange of a Global Security for individual
Debentures, such Global Security shall be cancelled by the
Trustee. Individual Debentures issued in exchange for a Global
Security shall be registered in such names and in such
authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Debentures to, or in accordance with
the instructions of the persons in whose name such Debentures
are so registered.
Unless and until it is exchanged in whole or in part for
the individual Debentures represented thereby, a Global Security
representing all or a portion of the Debentures may not be
transferred except as a whole by the Depositary for the
Debentures to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any such nominee to a
successor Depositary for the Debentures or a nominee of such
successor Depositary.
SECTION 2.04. The Debentures shall bear interest at the
rate of 6 3/8% per annum, payable semi-annually, in arrears, on
January 8 and July 8 of each year, commencing July 8, 1998
(each, an "Interest Payment Date"). The Debentures shall be
dated the date of authentication and interest shall be payable
on the principal represented thereby from the later of January
8, 1998, or the most recent Interest Payment Date to which
interest has been paid or duly provided for. If any date on
which interest is payable is not a business day, the payment of
interest due on such date may be made on the next succeeding
business day (and without any interest or other payment in
respect of such delay).
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
Holder in whose name any Debenture is registered in the Debt
Security register at the close of business on the January 1 or
July 1 (whether or not a business day) next preceding such
Interest Payment Date (each, a "Regular Record Date"). Interest
payable on redemption or maturity will be payable to the person
to whom the principal is paid.
Any interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) and Clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures are
registered at the close of business on a Special Record Date (as
defined below) for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Debenture and the date of
the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this Section provided. Thereupon the Trustee shall fix a
Special Record Date ("Special Record Date") for the payment of
such Defaulted Interest which shall be not more than 15 nor less
than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefore to be mailed, first class postage prepaid, to each
Holder of Debentures at his address as it appears in the Debt
Security register, not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Company, cause a similar notice to be
published at least once in an authorized newspaper in each Place
of Payment, but such publication shall not be a condition
precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names the Debentures are registered on such Special
Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Debenture delivered under this Supplemental Indenture No. 1 upon
transfer of or in exchange for or in lieu of any other Debenture
shall carry the rights to interest accrued but unpaid, and to
accrue, which were carried by such other Debenture.
SECTION 2.05. The Place of Payment for the Debentures
shall be both the City of New York, New York, and the City of
Charlotte, North Carolina. The Trustee shall be the paying
agent for the Debentures.
SECTION 2.06. The Debentures will be redeemable as a whole
or in part, at the option of the Company at any time (a "Company
Redemption Date"), at a redemption price equal to the greater of
(i) 100% of the principal amount of the Debentures to be redeemed
or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the
Company Redemption Date on the semi-annual basis (assuming a 360-
day year consisting of twelve 30-day months) at the Treasury Rate
plus 10 basis points, plus, in either case, accrued and unpaid
interest on the principal amount being redeemed to the Company
Redemption Date.
"Treasury Rate" means, with respect to any Company
Redemption Date, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable
Treasury Price for such Company Redemption Date.
"Comparable Treasury Issue" means the United States
Treasury security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the
Debentures to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Debentures. "Independent
Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any
Company Redemption Date, (i) the average of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) on the third business
day preceding such Company Redemption Date, as set forth in the
daily statistical release (or any successor release) published by
the Federal Reserve Bank of New York and designated ``Composite
3:30 p.m. Quotations for U.S. Government Securities'' or (ii) if
such release (or any successor release) is not published or does
not contain such prices on such business day, (A) the average of
the Reference Treasury Dealer Quotations for such Company
Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (B) if the Trustee
obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations. "Reference
Treasury Dealer Quotations'' means, with respect to each
Reference Treasury Dealer and any Company Redemption Date, the
average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Company Redemption Date.
"Reference Treasury Dealer" means ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and any additional reference dealers
appointed by the Company at the sole discretion of the Company,
and their respective successors; provided, however, that if any
of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury
Dealer"), the Company will substitute therefor another Primary
Treasury Dealer.
Notice of any redemption by the Company will be mailed at
least 30 days but not more than 60 days before any Company
Redemption Date to each holder of Debentures to be redeemed.
Unless the Company defaults in payment of the redemption
price, on and after any Company Redemption Date interest will
cease to accrue on the Debentures or portions thereof called for
redemption.
SECTION 2.07. The Debentures may be issued in
denominations of $1,000 and any integral multiples thereof.
SECTION 2.08. The Debentures shall be in the form attached
as Exhibit A hereto.
ARTICLE THREE
MISCELLANEOUS.
SECTION 3.01. The recitals of fact herein and in the
Debentures shall be taken as statements of the Company and shall
not be construed as made by the Trustee.
SECTION 3.02. This Supplemental Indenture No. 1 shall be
construed in connection with and as a part of the Indenture.
SECTION 3.03. (a) If any provision of this Supplemental
Indenture No. 1 limits, qualifies, or conflicts with another
provision of the Indenture required to be included in indentures
qualified under the Trust Indenture Act of 1939 (as in effect on
the date of this Supplemental Indenture No. 1) by any of the
provisions of Sections 310 to 317, inclusive, of said Trust
Indenture Act, such required provisions shall control.
(b) In case any one or more of the provisions contained in
this Supplemental Indenture No. 1 or in the Debentures issued
hereunder should be invalid, illegal, or unenforceable in any
respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in
any way be affected, impaired, prejudiced or disturbed thereby.
SECTION 3.04. Whenever in this Supplemental Indenture No.
1 either of the parties hereto is named or referred to, this
shall be deemed to include the successors or assigns of such
party, and all the covenants and agreements in this Supplemental
Indenture No. 1 contained by or on behalf of the Company or by
or on behalf of the Trustee shall bind and inure to the benefit
of the respective successors and assigns of such parties,
whether so expressed or not.
SECTION 3.05. (a) This Supplemental Indenture No. 1 may
be simultaneously executed in several counterparts, and all said
counterparts executed and delivered, each as an original, shall
constitute but one and the same instrument.
(b) The descriptive headings of the several Articles of
this Supplemental Indenture No. 1 were formulated, used and
inserted in this Supplemental Indenture No. 1 for convenience
only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇'▇ CORPORATION has caused this
Supplemental Indenture No. 1 to be signed, acknowledged and
delivered by its President, Executive Vice President and Chief
Financial Officer or Senior Vice President and Treasurer and its
corporate seal to be affixed hereunto and the same to be
attested by its Secretary or Assistant Secretary, and FIRST
UNION NATIONAL BANK, as Trustee, has caused this Supplemental
Indenture No. 1 to be signed, acknowledged and delivered by one
of its Vice Presidents, and its seal to be affixed hereunto and
the same to be attested by one of its Authorized Officers, all
as of the day and year first written above.
▇▇▇▇▇▇▇▇'▇ CORPORATION
[CORPORATE SEAL]
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Senior Vice President and
Treasurer
Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Secretary
FIRST UNION NATIONAL BANK, as Trustee
[CORPORATE SEAL]
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Vice President
Attest:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________________
Authorized Officer
STATE OF ILLINOIS
SS:
COUNTY OF DuPAGE
On the 8th day of January, in the year one thousand nine
hundred ninety eight, before me appeared ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to me
personally known, who being by me duly sworn, did say that he
resides at ▇▇▇▇▇▇▇▇'▇ Corporation, that he is Senior Vice
President and Treasurer of ▇▇▇▇▇▇▇▇'▇ CORPORATION, one of the
corporations described in and which executed the above
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Notary Public
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF PHILADELPHIA
On the 8th day of January, in the year one thousand nine
hundred ninety eight, before me appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to me
personally known, who, being by me duly sworn, did say that he
resides at Berwyn, Pennsylvania, that he is Vice President of
FIRST UNION NATIONAL BANK, one of the corporations described in
and which executed the above instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument
is such corporate seal, that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Notary Public