Exhibit 4.1(b)
WADDELL & REED FINANCIAL, INC
$200,000,000 7.50 % Notes due January 18, 2006
First Supplemental Indenture
Dated as of January 18, 2001
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
As Trustee
FIRST SUPPLEMENTAL INDENTURE dated as of January 18, 2001
("Supplemental Indenture"), to the Indenture dated as of January 18, 2001
(as supplemented, the "Indenture"), by and among WADDELL & REED FINANCIAL,
INC., a Delaware corporation (the "Company"), and CHASE MANHATTAN TRUST
COMPANY, NATIONAL ASSOCIATION, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the holders of Notes (as defined
below):
WHEREAS, the Company, and the Trustee have duly authorized the
execution and delivery of the Indenture to provide for the issuance from
time to time of senior debt securities (the "Securities") to be issued in
one or more series as in the Indenture provided;
WHEREAS, the Company desires and has requested the Trustee to
join it in the execution and delivery of this Supplemental Indenture in
order to establish and provide for the issuance by the Company of a series
of Securities designated as its 7.50 % Notes due January 18, 2006 in the
aggregate principal amount of $200,000,000, substantially in the form
attached hereto as Exhibit A (the "Notes"), on the terms set forth herein;
WHEREAS, Section 3.1 of the Indenture provides that a
supplemental indenture may be entered into by the Company and the Trustee
for such purpose provided certain conditions are met;
WHEREAS, the conditions set forth in the Indenture for the
execution and delivery of this Supplemental Indenture have been complied
with; and
WHEREAS, all things necessary to make this Supplemental
Indenture a valid agreement of the Company and the Trustee, in accordance
with its terms, and a valid amendment of, and supplement to, the Indenture
have been done;
NOW, THEREFORE:
In consideration of the premises and the purchase and
acceptance of the Notes by the holders thereof, the Company covenants and
agrees with the Trustee, for the equal and ratable benefit of the holders,
that the Indenture is supplemented and amended, to the extent expressed
herein, as follows:
ARTICLE I
Scope of Supplemental Indenture; General
This Supplemental Indenture supplements, and to the extent
inconsistent therewith, replaces the provisions of the Indenture, to which
provisions reference is hereby made.
The changes, modifications and supplements to the Indenture
effected by this Supplemental Indenture shall be applicable only with
respect to, and govern the terms of, the Notes, which shall initially be in
aggregate principal amount of $200,000,000, which amount may be increased
pursuant to an Officers' Certificate in accordance with this Indenture and
shall not apply to any other Securities that may be issued under the
Indenture unless a supplemental indenture with respect to such other
Securities specifically incorporates such changes, modifications and
supplements. Pursuant to this Supplemental Indenture, there is hereby
created and designated a series of Securities under the Indenture entitled
"7.50 % Notes due January 18, 2006." The Notes shall be in the form of
Exhibit A hereto. If required, the Notes may bear an appropriate legend
regarding original issue discount for federal income tax purposes.
In the event that the Company shall issue and the Trustee shall
authenticate any Notes issued under this Supplemental Indenture subsequent
to the Issue Date (such Notes, "Additional Securities"), the Company shall
use its best efforts to obtain the same "CUSIP" number for such Notes as is
printed on the Notes outstanding at such time; provided, however, that if
any series of Notes issued under this Supplemental Indenture subsequent to
the Issue Date is determined, pursuant to an Opinion of Counsel of the
Company in a form reasonably satisfactory to the Trustee, to be a different
class of security than the Notes outstanding at such time for federal
income tax purposes, the Company may obtain a "CUSIP" number for such Notes
that is different than the "CUSIP" number printed on the Notes then
outstanding. Notwithstanding the foregoing, all Notes issued under this
Supplemental Indenture shall vote and consent together on all matters as
one class and no series of Notes will have the right to vote or consent as
a separate class on any matter.
ARTICLE II
Certain Definitions
The following terms have the meanings set forth below in this
Supplemental Indenture. Capitalized terms used but not defined herein have
the meanings ascribed to such terms in the Indenture. To the extent terms
defined herein differ from the Indenture the terms defined herein will
govern.
"Bankruptcy Law" means title 11 of the United States Code, as
amended, or any similar federal or state law for the relief of debtors.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Debt" means with respect to the Company at any date, without
duplication, obligations (other than nonrecourse obligations) for borrowed
money or evidenced by bonds, debentures, notes or similar instruments.
"Default" means any event, act or condition that is, or after notice
or the passage of time or both would be, an Event of Default.
"Event of Default" means any event or condition specified as such in
Section 4.1 hereof.
"Holder" means the Person in whose name a Note is registered in the
books of the Registrar for the Notes.
"Issue Date" means the date on which the Notes are originally issued
under the Indenture.
"Trustee" means the party named as such above until a successor
replaces such party in accordance with the applicable provisions of the
Indenture and thereafter means the successor serving her der.
ARTICLE III
Covenants
Section 3.1 Reports to Holders of Notes. The Company shall file
with the Commission the annual reports and the information, documents and
other reports required to be filed pursuant to Section 13 or 15(d) of the
Exchange Act. The Company shall file with the Trustee after it files them
with the Commission and make generally available to each to each Holder of
record of Notes such reports, information and documents within 15 days
after it files them with the Commission. In the event that the Company is
no longer subject to these periodic requirements of the Exchange Act, it
will nonetheless continue to file reports with the Commission and the
Trustee and mail such reports to each Holder of Notes as if it were subject
to such reporting requirements.
ARTICLE IV
Remedies
Section 4.1 Events of Default.
(a) "Event of Default" means any one or more of the following
events:
(i) the failure by the Company to pay interest on any
Note when the same becomes due and payable and the
continuance of any such failure for a period of 30
days;
(ii) the failure by the Company to pay the principal or
premium of any Note when the same becomes due and
payable at maturity, upon acceleration or otherwise;
(iii) the failure by the Company, to comply with any of its
agreements or covenants in, or provisions of, the
Notes, or the Indenture and such failure continues
for the period and after the notice specified below;
(iv) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
or
(D) makes a general assignment for the benefit of its
creditors;
(v) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company as debtor in an
involuntary case,
(B) appoints a Custodian of the Company for all or
substantially all of the property of the Company,
or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days.
(x) (1) failure of the Company to make any payment by the
end of any applicable grace period after maturity of Debt in an amount in
excess of $10,000,000 and continuance of such failure, or (2) the
acceleration of Debt in an amount in excess of $10,000,000 because of a
default with respect to such Debt without such Debt having been discharged
or such acceleration having been cured, waived, rescinded or annulled, in
the case of (1) or (2) above, for a period of 30 days after receipt by the
Company of a Notice of Default;
A Default as described in subclause (iii) above will not be deemed an Event
of Default until the Trustee, if indemnified as provided in Section 6.3(5)
of the Indenture, notifies the Company, or the Holders of at least 10
percent in principal amount of the then outstanding Notes notify the
Company and the Trustee, of the Default and the Default within 60 days
after receipt of the notice. The notice must specify the Default, demand
that it be remedied and state that the notice is a "Notice of Default." If
such a Default is cured within such time period, it ceases.
If an Event of Default (other than an Event of Default with
respect to the Company resulting from subclauses (iv) or (v) above), shall
have occurred and be continuing under the Indenture, the Trustee, if
indemnified as provided in Section 6.3(5) of the Indenture, by notice to
the Company, or the Holders of at least 25 percent in principal amount of
the Notes then outstanding by notice to the Company and the Trustee, may
declare all Notes to be due and payable immediately. Upon such declaration
of acceleration, the amounts due and payable on the Notes will be due and
payable immediately. If an Event of Default with respect to the Company
specified in subclauses (iv) or (v) above occurs, such an amount will ipso
facto become and be immediately due and payable without any declaration,
notice or other act on the part of the Trustee and the Company or any
Holder.
Section 4.2 Waiver of Defaults by Majority of Noteholders. The
Holders of a majority in principal amount of the Notes then outstanding by
written notice to the Trustee and the Company may waive any Default or
Event of Default (other than any Default or Event of Default in payment of
principal or interest) under the Indenture. Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture.
Holders of a majority in principal amount of the then outstanding Notes may
rescind an acceleration and its consequence (except an acceleration due to
nonpayment of principal or interest on the Notes) if the rescission would
not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived.
Section 4.3 Direction of Proceedings. The Holders may not
enforce the provisions of the Indenture, the Notes except as provided in
the Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the Notes then outstanding may direct the Trustee, if
indemnified as provided in Section 6.3(5) of the Indenture, in its exercise
of any trust or power, provided, however, that such direction does not
conflict with the terms of the Indenture. The Trustee may withhold from the
Holders notice of any continuing Default or Event of Default (except any
Default or Event of Default in payment of principal or interest on the
Notes) if the Trustee determines that withholding such notice is in the
Holders' interest.
Section 4.4 Notice of Defaults. The Company is required to
deliver to the Trustee an annual statement regarding compliance with the
Indenture, and include in such statement, if any officer of the Company is
aware of any Default or Event of Default, a statement specifying such
Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto. In addition, the Company is required
to deliver to the Trustee prompt written notice of the occurrence of any
Default or Event of Default.
ARTICLE V
The Notes
Section 5.1 Book Entry, Delivery and Form.
The Notes will be issued in the form of a fully registered
Global Note (the "Global Note"). The Global Note will be deposited on or
about the Issue Date with, or on behalf of, The Depository Trust Company
(the "Depositary") and registered in the name of Cede & Co., as nominee of
the Depositary (such nominee being referred to herein as the "Global Note
Holder").
So long as the Global Note Holder is the registered owner of
any Notes, the Global Note Holder will be considered the sole owner or
holder of such Notes outstanding under the Indenture for all purposes.
Except as provided in Section 6.2 below, owners of Notes will not be
entitled to have Notes registered in their names, will not receive or be
entitled to receive physical delivery of Notes in definitive form, and will
not be considered the Holders thereof under the Indenture for any purpose,
including with respect to the giving of any directions, instructions or
approvals to the Trustee thereunder, or giving of notices and enforcement
of remedies. As a result, the ability of a Person having a beneficial
interest in Notes represented by the Global Note to pledge such interest to
Persons or entities that do not participate in the Depositary's system or
to otherwise take actions in respect of such interest may be affected by
the lack of a physical certificate evidencing such interest.
Neither the Company, the Trustee, the Paying Agent nor the
Notes Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of the Notes by the
Depositary, or for maintaining, supervising or reviewing any records of the
Depositary relating to such Notes.
Payments in respect of the principal, premium, if any, and
interest on any Notes registered in the name of a Global Note Holder on the
applicable record date will be payable by the Trustee to or at the
direction of such Global Note Holder in its capacity as the registered
holder under the Indenture. Under the terms of the Indenture, the Company,
the Company and the Trustee may treat the Persons in whose names the Notes,
including the Global Note, are registered as the owners thereof for the
purpose of receiving such payments and for any and all other liability for
the payment of such amounts to beneficial owners of Notes (including
principal, premium, if any, and interest).
As long as the Notes are represented by a Global Note, the
Depositary's nominee will be the holder of the Notes and therefore will be
the only entity that can exercise a right to repayment or repurchase of the
Notes. Notice by Participants or Indirect Participants of the Depository of
the exercise of the option to elect repayment of beneficial interests in
Notes represented by a Global Note must be transmitted to the Depositary in
accordance with its procedures on a form required by the Depositary and
provided to Participants. In order to ensure that the Depositary's nominee
will timely exercise a right to repayment with respect to a particular
Note, the beneficial owner of such Note must instruct the broker or the
Participant or Indirect Participant through which it holds an interest in
such Note to notify the Depositary of its desire to exercise a right to
repayment. Each beneficial owner should consult the broker or other
Participant or Indirect Participant through which it holds an interest in a
Note in order to ascertain the cut-off time by which such an instruction
must be given in order for timely notice to be delivered to the Depositary.
The Company and the Company will not be liable for any delay in delivery of
notices of the exercise of the option to elect repayment.
Section 5.2 Certificated Notes.
If (i) the Company notifies the Trustee in writing that the
Depositary is no longer willing or able to act as a depositary and the
Company is unable to locate a qualified successor within 90 days, (ii) the
Company, at its option, notifies the Trustee in writing that it elects to
cause the issuance of Notes in the form of Certificated Notes under the
Indenture, or (iii) there shall have occurred and be continuing an Event of
Default with respect to the Notes, then, upon surrender by the relevant
Global Note Holder of its Global Note, Notes in the form of Certificated
Notes will be issued to each Person that such Global Note Holder and the
Depositary identify as the beneficial owner of the related Notes.
Neither the Company, nor the Trustee shall be liable for any
delay by the related Global Note Holder or the Depositary in identifying
the beneficial owners of Notes and each such Person may conclusively rely
on and shall be protected in relying on, instructions from the Global Note
Holder or of the Depositary for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the
Notes to be issued).
Section 5.3 Same-Day Settlement and Payment.
The payments in respect of the Notes (including principal,
premium, if any, and interest) will be made by wire transfer of immediately
available funds to the accounts specified by the Global Note Holder.
Section 5.4 Transfer and Exchange.
A holder may transfer or exchange the Notes in accordance with
the procedures set forth in the Indenture. The Registrar may require a
holder, among other things, to furnish appropriate endorsements and
transfer documents, and to pay any taxes and fees required by law or
permitted by the Indenture.
The registered Holder of a Note will be treated as the owner of
it for all purposes.
ARTICLE VI
Section 6.1 Form of Trustee's Certificate of Authentication.
Notwithstanding anything contained in the Indenture, the
Trustee's certificates of authentication with respect to the Global Note
shall be in substantially the following form:
Chase Manhattan Trust Company,
National Association, as Trustee,
certifies that this is the Global
Note referred to in the
aforementioned Indenture.
Date:
By:______________________________
Authorized Signatory
ARTICLE VII
Miscellaneous
Section 7.1 Governing Law. The laws of the State of New York
shall govern this Supplemental Indenture and the Notes without giving
effect to principles of conflict of laws.
Section 7.2 No Adverse Interpretation of other Agreements. This
Supplemental Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Supplemental Indenture.
Section 7.3 No Recourse Against Others. All liability described
in paragraph 12 of the Global Note of any director, officer, employee or
stockholder, as such, of the Company is waived and released.
Section 7.4 Successors and Assigns. All covenants and
agreements of the Company, in this Supplemental Indenture and the Notes
shall bind its successors and assigns. All agreements of the Trustee in
this Supplemental Indenture shall bind its successors and assigns.
Section 7.5 Duplicate Originals. The parties may sign any
number of copies of this Supplemental Indenture. Each signed copy shall be
an original, but all of them together represent the same agreement.
Section 7.6 Severability. In case any one or more of the
provisions contained in this Supplemental Indenture or in the Notes shall
for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Supplemental Indenture or of the Notes.
SIGNATURES
IN WITNESS WHEREOF, the parties have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
WADDELL & REED FINANCIAL, INC.,
as the Company
By: /s/ John E. Sundeen, Jr.
-------------------------------
Name: John E. Sundeen, Jr.
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Lisa J. Garrett
-----------------------------
Name: Lisa J. Garrett
Title: Vice President
Exhibit A
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS GLOBAL NOTE IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS GLOBAL NOTE (OTHER THAN A
TRANSFER OF THIS GLOBAL NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. 1 CUSIP No.: 930059AA8
7.50 % Notes due January 18, 2006
WADDELL & REED FINANCIAL, INC.
A DELAWARE CORPORATION
Waddell & Reed Financial, Inc. (the "Company") promises to pay to
CEDE & CO. or registered assigns the principal sum of TWO HUNDRED MILLION
DOLLARS on January 18, 2006 and to pay interest on the principal
outstanding amount hereof on January 18 and July 18, commencing July 18,
2001, through but not including January 18, 2006.
All capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Indenture by and between the
Company and Chase Manhattan Trust Company, National Association, as Trustee
(the "Trustee") dated as of January 18, 2001, as supplemented by the First
Supplemental Indenture dated as of January 18, 2001, by and between the
Company and the Trustee (collectively, the "Indenture").
The provisions of this Security are continued on the attached "Terms
of Notes" and such continued provisions shall for all purposes have the
same effect as though fully set forth at this ce.
WADDELL & REED FINANCIAL, INC.
By:_______________________________
Name: John E. Sundeen, Jr.
Title: Senior Vice President,
Chief Financial Officer and
Treasurer
Attest:
By:____________________________
Name: Daniel C. Schulte
Title: Vice President and
General Counsel
TRUSTEE'S CERTIFICATE OF AUTHORIZATION
Chase Manhattan Trust Company,
National Association, as Trustee,
certifies that this is the
Global Note referred to in the
aforementioned Indenture.
Date: January 18, 2001
By:__________________________
Authorized Signatory
Terms of Notes
WADDELL & REED FINANCIAL, INC.
7.50 % Notes due January 18, 2006
1. Interest.
WADDELL & REED FINANCIAL, INC. (the "Company"), a
Delaware corporation, promises to pay interest on the principal amount of
this Note at the rate per annum shown above. The Company will pay interest
semiannually on January 18 and July 18 of each year, commencing July 18,
2001, until the principal is paid or made available for payment. Interest
on the Notes will accrue from the most recent date to which interest has
been paid or duly provided for or, if no interest has been paid, from the
date of original issuance, provided that, if there is no existing default
in the payment of interest, and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding interest
payment date, interests shall accrue from such interest payment date.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment.
The Company will pay interest on the Notes (except defaulted
interest, if any, which will be paid on such special payment date to
Holders of record on such special record date as may be fixed by the
Company) to the persons who are registered Holders of Notes at the close of
business on the January 3 and July 3 immediately preceding the interest
payment date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of
the United States that at the time of payment is legal tender for payment
of public and private debts (i) by check mailed to the Holder at such
address as shall appear in the Security Register or (ii) by transfer to an
account maintained by the Person entitled thereto, provided that proper
written transfer instructions have been received by the relevant record
date.
3. Paying Agent and Registrar.
Initially, Chase Manhattan Trust Company, National Association
(the "Trustee") will act as Paying Agent and Registrar. The Company may
change or appoint any Paying Agent, Registrar or co-Registrar without
notice. The Company or any of its Subsidiaries may act as Paying Agent,
Registrar or co-Registrar.
The Company issued the Notes under a Supplemental Indenture
dated as of January 18, 2001 to the Indenture dated January 18, 2001, among
the Company and the Trustee (as supplemented, the "Indenture"). The terms
of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 ("TIA") as in
effect on the date of the Indenture. The Notes are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a
statement of them. Capitalized terms not defined herein have the meanings
given to those terms in the Indenture.
The Notes are unsecured and unsubordinated obligations of the
Company ranking pari passu with all other unsecured and unsubordinated
indebtedness of the Company from time to time outstanding. The Company will
furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to: Waddell & Reed Financial, Inc., 6300 Lamar
Avenue, Overland Park, Kansas 66202, Attention: Chief Financial Officer.
4. Redemption.
The Notes will not be redeemable prior to their maturity.
5. Denominations, Transfer, Exchange.
The Notes are in registered form only without coupons in
denominations of $1,000 and integral multiples of $1,000. A Holder may
transfer or exchange Notes by presentation of such Notes to the Registrar
or a co-Registrar with a request to register the transfer or to exchange
them for an equal principal amount of Notes of other denominations. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required
by law or permitted by the Indenture.
6. Persons Deemed Owners.
The registered Holder of this Note shall be treated as the
owner of it for all purposes.
7. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for a period ending on the earlier of the date that is ten
Business Days prior to the date such money would escheat to the State or
two years after such principal or interest has become due and payable, the
Trustee or Paying Agent will pay the money back to the Company at its
request. After that, Holders entitled to the money must look to the Company
for payment unless an abandoned property law designates another person.
8. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture and the Notes may
be amended or supplemented with the consent (which may include consents
obtained in connection with a tender offer or exchange offer for Notes) of
the Holders of at least a majority in principal amount of the Notes then
outstanding, and any existing Default under, or compliance with any
provision of the Indenture may be waived (other than any continuing Default
or Event of Default in the payment of interest on or the principal of the
Notes) with the consent (which may include consents obtained in connection
with a tender offer or exchange offer for Notes) of the Holders of a
majority in principal amount of the Notes then outstanding. Without the
consent of any Holder, the Company and the Trustee may amend or supplement
the Indenture, or the Notes to cure any ambiguity, defect or inconsistency;
to provide for uncertificated Notes in addition to or in place of
certificated Notes; or to make any change that does not adversely affect
the legal rights of any Holder.
Without the consent of each Holder affected, the Company and
the Trustee may not:
(1) reduce the principal amount at maturity with respect to or
change the Stated Maturity of any Note,
(2) reduce the rate of or change the time for payment of
interest, including default interest, on any Note,
(3) change any Place of Payment where any Note or interest
thereon is payable, or make any Note payable in money other than the
currency of the United States of America,
(4) reduce the percentage in principal amount of the Notes, the
consent of whose holders is required for any modification or
amendment of the terms of the Notes and the Indenture,
(5) make any change in the "Waiver of Past Defaults,"
"Supplemental Indentures with Consent of Holders," or "Waiver of
Certain Covenants" sections set forth in the Indenture except as
provided in the Indenture,
(6) modify the ranking or priority of the Notes,
(7) impair the right to institute suit for the enforcement of
any payment with respect to the Notes, or
(8) waive a continuing Default or Event of Default in the
payment of principal of or interest on the Notes.
The right of any Holder to participate in any consent required
or sought pursuant to any provision of the Indenture (and the obligation of
the Company to obtain any such consent otherwise required from such Holder)
may be subject to the requirement that such Holder shall have been the
Holder of record of any Notes with respect to which such consent is
required or sought as of a date identified by the Trustee in a notice
furnished to Holders in accordance with the terms of the Indenture.
9. Successor Substituted.
When a successor assumes all the obligations of its predecessor
under the Notes and in accordance with the Indenture, the successor shall
succeed to, and be substituted for, and may exercise every right and power
of, the Company under the Notes and the Indenture with the same effect as
if such successor had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor shall be relieved of all
obligations and covenants under the Notes and the Indenture.
10. Trustee Dealings With Company.
Chase Manhattan Trust Company, National Association, the
Trustee under the Indenture, in its individual or any other capacity, or
any of its affiliates, may make loans to, accept deposits from, and perform
services for the Company or its affiliates, and may otherwise deal with the
Company or its affiliates, as if it were not Trustee; however, if it
acquires any conflicting interest (as defined in the Indenture), it must
eliminate such conflict or resign.
11. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Notes.
12. Authentication.
This Note shall not be valid until the Trustee signs the
certificate of authentication immediately below the Company's execution of
this Note.
13. Governing Law.
The Notes and the Indenture shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect
to such State's conflicts of laws principles.
14. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (=custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).