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EXHIBIT 4.36
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MAXXAM GROUP INC.
$126,720,000 12 1/4% Senior Secured Discount Notes due 2003
$100,000,000 11 1/4% Senior Secured Notes due 2003
SECOND SUPPLEMENTAL INDENTURE
Dated as of December 23, 1996
to
INDENTURE
Dated As of August 4, 1993
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Fleet National Bank, Trustee
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SECOND SUPPLEMENTAL INDENTURE, dated as of December 23, 1996,
between MAXXAM Group Inc. (the "Company") and Fleet National Bank, a national
banking association, as Trustee (the "Trustee").
WHEREAS, the Company and Shawmut Bank, N.A., as trustee,
executed an Indenture, dated as of August 4, 1993, in respect of $126,720,000
aggregate principal amount of 12 1/4% Senior Secured Discount Notes due 2003
and $100,000,000 aggregate principal amount of 11 1/4% Senior Secured Notes due
2003;
WHEREAS, the Trustee is the successor to Shawmut Bank, N.A.,
as trustee, under such Indenture;
WHEREAS, such Indenture was supplemented and amended by a
First Supplemental Indenture dated as of December 17, 1996;
WHEREAS, such Indenture, as supplemented and amended by such
First Supplemental Indenture, is hereinafter referred to as the "Indenture";
WHEREAS, the Indenture was also executed by MAXXAM Inc. and by
MAXXAM Properties Inc. to confirm their respective agreements set forth in
Article 10 of the Indenture;
WHEREAS, for all purposes of this Second Supplemental
Indenture, except as otherwise defined or unless the context otherwise
requires, terms used in capitalized form in this Second Supplemental Indenture
and defined in the Indenture have the meanings specified in the Indenture;
WHEREAS, Section 9.01 of the Indenture permits the Company and
the Trustee to amend, supplement or otherwise modify the Indenture or the
Securities as hereinafter provided;
WHEREAS, all conditions and requirements necessary to make
this Second Supplemental Indenture a valid, binding and legal instrument in
accordance with its terms have been performed and fulfilled and the execution
and delivery hereof have been in all respects duly authorized.
NOW, THEREFORE, in consideration of the above premises, each
party agrees, for the benefit of the other and for the equal and ratable
benefit of the Holders of the Securities, as follows:
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ARTICLE I
TRANSFER OF PLEDGED KAISER SHARES
Simultaneously with the execution and delivery of this Second
Supplemental Indenture, MAXXAM is transferring the Pledged Kaiser Shares to
MAXXAM Group Holdings Inc., a Delaware corporation ("MGHI"), pursuant to
Section 10.14 of the Indenture. To secure the full and punctual payment of
Accreted Value and premium of and interest on the Securities and all other
amounts payable pursuant to the Indenture, MGHI hereby grants to the Trustee,
for the benefit of the Holders and the Trustee, a first priority and (except
for Liens permitted under Section 4.16 of the Indenture) exclusive security
interest in all its right, title and interest in and to the following:
(i) the 27,938,250 shares of Common Stock, par value $.01
per share, of Kaiser described on the revised Exhibit C to the
Indenture being delivered to the Trustee pursuant to Section 10.04 of
the Indenture simultaneously with the execution and delivery of this
Second Supplemental Indenture;
(ii) all certificates whether now owned or hereafter
acquired representing any of the shares referred to in clause (i) of
this Article I;
(iii) all dividends, cash, instruments and other property
and proceeds from time to time received, receivable or otherwise
distributed on or in exchange for any of the foregoing after the Issue
Date, including, without limitation, any stocks, bonds or other
securities, options, warrants, or other such rights, cash or other
property payable or distributable on any of the shares referred to in
clause (i) of this Article I at any time, including, without
limitation, any distribution on any such shares upon the dissolution
or liquidation, in whole or in part, of the issuer of such shares or
the consolidation or merger of such issuer with any other person or
persons, or the reorganization of such issuer, or any distribution on
any such shares of the capital or paid-in capital surplus or any part
thereof of the issuer of such shares, in any form, or any subdivision,
combination, reclassification or redemption of any such shares; and
(iv) to the extent not included in clauses (i), (ii) and
(iii) of this Article I, all proceeds (as defined in the Uniform
Commercial Code as in effect on the date of the Indenture) of any and
all of the foregoing (arising after the Issue Date).
The security interest granted pursuant to this Article I shall, for purposes of
the Indenture, be deemed to have been granted pursuant to each of Section 10.14
and Section 10.01(c) of the
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Indenture. MGHI hereby assumes all of the obligations with respect to the
Pledged Kaiser Shares applicable to MAXXAM under Article 10 of the Indenture.
The Trustee has, pursuant to Section 10.14 of the Indenture, been requested to
surrender, and is, simultaneously with the execution and delivery of this
Second Supplemental Indenture, surrendering, the certificate held by it for the
Pledged Kaiser Shares registered in the name of MAXXAM Inc. against delivery to
it of a certificate for the Pledged Kaiser Shares registered in the name of
MGHI, accompanied by duly executed and undated instruments of transfer or
assignment in blank.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1. Indenture. Except as amended hereby, the
Indenture and the Securities are in all respects ratified and confirmed and all
their terms shall remain in full force and effect.
Section 2.2. Governing Law. THE LAWS OF THE STATE OF NEW
YORK SHALL GOVERN THIS SECOND SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY, EXCEPT THAT THE
LAWS OF THE STATE OF MASSACHUSETTS SHALL GOVERN MATTERS CONCERNING THE VALIDITY
AND PERFECTION OF SECURITY INTERESTS OF THE TRUSTEE IN FAVOR OF THE HOLDERS IN
THE ACCOUNTS, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
Section 2.3. Successors. All agreements of the Company and
MGHI in this Second Supplemental Indenture shall bind their successors. All
agreements of the Trustee in this Second Supplemental Indenture shall bind its
successors.
Section 2.4. Multiple Counterparts. This Second 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 2.5. Effectiveness. The provisions of this Second
Supplemental Indenture shall become effective immediately upon its execution
and delivery by the Trustee in accordance with the provisions of Article 9 of
the Indenture.
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(REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the date first written
above.
Attest: MAXXAM GROUP INC.
By:________________________ By: ___________________________
Name: Byron L. Wade Name:
Title: Secretary Title:
Attest: FLEET NATIONAL BANK
By:________________________ By: ___________________________
Name: Name:
Title: Title:
MAXXAM GROUP HOLDINGS INC.
hereby confirms its agreements set forth
in Article I of this Second Supplemental
Attest: Indenture and in Article 10 of the Indenture
By:________________________ By: ___________________________
Name: Name:
Title: Title:
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MAXXAM PROPERTIES INC. hereby
consents to the execution and delivery
of this Second Supplemental Indenture and
Attest: confirms its agreements set forth in Article
10 of the Indenture
By:________________________ By: ___________________________
Name: Name:
Title: Title:
MAXXAM INC. hereby consents to
the execution and delivery of this
Attest: Second Supplemental Indenture
By:________________________ By: ___________________________
Name: Name:
Title: Title:
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