EXHIBIT (4)(c)
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THE MEAD CORPORATION
TO
BANKERS TRUST COMPANY, TRUSTEE
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Second Supplemental Indenture
Dated as of October 15, 1989
TO INDENTURE
Dated as of July 15, 1982
As Amended by
First Supplemental Indenture
Dated as of March 1, 1987
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SECOND SUPPLEMENTAL INDENTURE, dated as of October 15, 1989,
between THE MEAD CORPORATION, a corporation duly organized and
existing under the laws of the State of Ohio (the "Company"),
having its principal offices at Dayton, Ohio and BANKERS TRUST
COMPANY, a corporation duly organized and existing under the laws
of the State of New York, as Trustee (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered
to the Trustee an Indenture, dated as of July 15, 1982, and a
First Supplemental Indenture (the "First Supplemental
Indenture"), dated as of March 1, 1987 (as so supplemented, the
"Indenture"), providing for the issuance from time to time of its
unsecured debentures, notes and other evidences of indebtedness
(herein and therein called the "Securities"), to be issued in one
or more series as in the Indenture provided;
WHEREAS, Sections 901(5) and 901(9) of the Indenture
provide, among other things, that the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to
time, may enter into an indenture supplemental to the Indenture
(1) for the purpose of changing or eliminating any provision of
the Indenture, provided that such change or elimination becomes
effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision and
(2) for the purpose of making any other provisions with respect
to matters arising under the Indenture, provided that such action
does not adversely affect the interests of the Holders of
Securities of any series in any material respect;
WHEREAS, the Company pursuant to the foregoing authority,
proposed in and by this Second Supplemental Indenture to amend
the Indenture in certain respects with respect to the Securities
of any series created on or after the date hereof; and
WHEREAS, all things necessary to make this Second
Supplemental Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
AGREEMENT
NOW, THEREFORE, the Company and the Trustee hereby agree as
follows:
1. Section 101 of the Indenture is hereby amended by
adding the following definitions:
"Authorized Newspaper" means a newspaper in an official
language of the country of publication or in the English
language, in either case customarily published on each
Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in
connection with which the term is used or in the financial
community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different
newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form of bearer
securities established pursuant to Section 201 that is
payable to bearer.
"CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A.
The term "coupon" means any interest coupon appertaining to
a Bearer Security.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of
one or more Global Securities, the Person designated as
Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than
one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with
respect to the Debt Securities of that series.
"Designated Currency" has the meaning specified in Section
313.
"Dollar" or "$" means the coin or currency of the United
States of America as at the time of payment is legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European
Communities.
"Euro-clear" means Morgan Guaranty Trust Company of New
York, Brussels office, or its successor as operator of the
Euro-clear System.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the
European Atomic Energy Community.
"Exchange Rate" means the exchange rate set forth in the
Officers' Certificate or supplemental indenture establishing
a series of Securities pursuant to Section 301.
"Foreign Currency" means a currency issued by the government
of any country other than the United States of America.
"Global Security" means a Registered or Bearer Security
evidencing all or part of a series of Securities, issued to
the Depositary for such series or its nominee in accordance
with Section 303, and bearing the legend prescribed in
Section 303.
"Registered Security" means any Security in the form of
registered securities established pursuant to Section 201
that is registered in the Security Register.
"United States" means the United States of America
(including the States thereof and the District of Columbia),
its territories and possessions and other areas subject to
its jurisdiction.
"United States Alien" means any Person who, for United
States Federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for
United States Federal income tax purposes, a foreign
corporation, a non-resident alien individual or a non-
resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in
Section 1304.
2. The definitions of "Business Day", "Holder", "Place of
Payment" and "Securities" in Section 101 of the Indenture are
hereby amended to read in full as follows:
"Business Day", when used with respect to any Place of
Payment or any other particular location referred to in the
Indenture or in the Securities, means, except as may
otherwise be provided in the form of Securities of any
particular series pursuant to the provisions of this
Indenture, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in
that Place of Payment are authorized or obligated by law to
close.
"Holder", with respect to a Registered Security, means a
Person in whose name such Registered Security is registered
in the Security Register and, with respect to a Bearer
Security or a coupon, means the bearer thereof.
"Place of Payment", when used with respect to the Securities
of any series payable in Dollars, means the Corporate Trust
office of the Trustee in the Borough of Manhattan, the City
and State of New York, when used with respect to the
Securities of any series payable in a Foreign Currency,
means the place or places where such Foreign Currency is the
legal tender, and, when used with respect to the Securities
of any series, means such other place or places, if any,
where the principal of (and premium, if any) and any
interest on the Securities of that series are payable as
specified as contemplated by Section 301, in all cases
subject to the provisions of Section 1002.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture. Where
appropriate in the context of this Indenture, the term
"Securities" includes any coupons appertaining to any Bearer
Securities.
3. Section 104 of the Indenture is hereby amended as
follows:
(a) By adding the following immediately after the
first sentence of subdivision (a):
If Securities of a series are issuable in whole or part as
Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders may,
alternatively, be embodied in and evidenced by the record of
Holders of Securities voting in favor thereof, either in
person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in
accordance with the provisions of Article Fourteen, or a
combination of such instruments and any such record.
(b) By adding the following at the end of subdivision
(a):
The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 1406.
(c) By relettering Section 104(d) as Section 104(h) and by
adding the following immediately prior to new Section 104(h):
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the
same, may be proved by the production of such Bearer
Securities or by a certificate executed, as depositary, by
any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by
the Trustee to be satisfactory, showing that at the date
therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the
amount and with the serial numbers therein described; or
such facts may be proved by the certificate or affidavit of
the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that
such ownership of any Bearer Security continues until (1)
another certificate of affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some
other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer
Security is no longer Outstanding.
(e) The fact and date of execution of any such instrument
or writing, the authority of the Person executing the same
and the principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument
or writing and the date of holding the same may also be
proved in any other manner which the Trustee deems
sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to
in this Section.
(f) If the Company shall solicit from the Holders of
Securities of any series any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company
may, at its option, by Board Resolution, fix in advance a
record date for the determination of Holders of Registered
Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. Any
such record date shall be fixed at the Company's discretion.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent and waiver or
other Act may be sought or given before or after the record
date, but only the Holders of Registered Securities of
record at the close of business on such record date shall be
deemed to be Holders of Registered Securities for the
purpose of determining whether Holders of the requisite
proportion of Securities of such series Outstanding have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Registered Securities of such
series Outstanding shall be computed as of such record date.
(g) For purposes of determining the principal amount of
Outstanding Securities of any series the Holders of which
are required, requested or permitted to give any request,
demand, authorization, direction, notice, consent, waiver or
take any other Act under this Indenture and for purposes of
determining whether a quorum is present at a meeting of
Holders of Securities, (i) each original Issue Discount
Security shall be deemed to have the principal amount
determined by the Trustee that would be due and payable upon
acceleration of the Maturity thereof pursuant to Section 502
and the terms of such Original Issue Discount Security as of
the date such Act is delivered to the Trustee and, where it
is hereby expressly required, the Company and (ii) each
Security denominated in a Foreign Currency or composite
currency shall be deemed to have the principal amount
determined by the exchange rate agent specified pursuant to
Section 301 by converting the principal amount of such
Security in the currency in which such Security is
denominated into Dollars at the Exchange Rate as of the date
such Act is delivered to the Trustee and, where it is hereby
expressly required, to the Company (or, if there is no such
rate on such date, such rate as determined by such exchange
rate agent).
4. Section 106 of the Indenture is hereby amended as
follows:
(a) By deleting the first sentence of the first paragraph
and inserting in its place the following:
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, (1)
such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class
postage prepaid, to each Holder of a Registered Security
affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of
such notice; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities if published in an
Authorized Newspaper in The City of New York and, if the
Securities of such series are then listed on The
International Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so
require, in London and, if the Securities of such series are
then listed on the Luxembourg Stock Exchange and such stock
exchange shall so require, in Luxembourg and, if the
Securities of such series are then listed on any other stock
exchange outside the United States and such stock exchange
shall so require, in any other required city outside the
United States or, if not practicable, in Europe on a
Business Day at least twice, the first such publication to
be not earlier than the earliest date and not later than the
latest date prescribed for the giving of such notice.
(b) By adding the following to the end thereof:
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason
of any other cause it shall be impracticable to publish any
notice to Holders of Bearer Securities as provided above,
then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall
constitute sufficient notice to such Holders for every
purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided
above, nor any defect in any notice so published, shall
affect the sufficiency of any notice mailed to Holders of
Registered Securities as provided above.
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act required or permitted
under this Indenture shall be in the English language,
except that any published notice may be in an official
language of the country of publication.
5. Section 301 of the Indenture (as amended by the First
Supplemental Indenture) is hereby further amended as follows:
(a) By deleting Section 301(8) and inserting in its
place the following:
(8) the denominations in which Registered Securities of the
series, if any, shall be issuable, if other than
denominations of $1,000 and any integral multiple thereof,
and the denominations in which Bearer Securities of the
series, if any, shall be issuable if other than the
denomination of $5,000;
(b) By deleting the word "and" from the end of Section
301(10), by renumbering Section 301(11) as Section 301(18) and by
inserting the following immediately prior to new Section 301(18):
(11) whether Bearer Securities of the series are to be
issuable and, if so, whether Registered Securities of the
series are also to be issuable;
(12) if Bearer Securities of the series are to be issuable,
(x) whether interest in respect of any portion of a
temporary Security in global form (representing all of the
Outstanding Bearer Securities of the series) payable in
respect of any Interest Payment Date prior to the exchange
of such temporary Security for definitive Securities of the
series shall be paid to any clearing organization with
respect to the portion of such temporary Security held for
its account and, in such event, the terms and conditions
(including any certification requirements) upon which any
such interest payment received by a clearing organization
will be credited to the Persons entitled to interest payable
on such Interest Payment Date, and (y) the terms upon which
interests in such temporary Security in global form may be
exchanged for interests in a permanent Global Security or
for definitive Securities of the series and the terms upon
which interest in a permanent Global Security, if any, may
be exchanged for definitive Securities of the series;
(13) whether the Securities of the series shall be issued
in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary for such Global
Security or Securities;
(14) if other than Dollars, the currency of denomination of
the Securities of any series, which may be in Dollars, any
Foreign Currency or any composite currency, including but
not limited to the ECU, and, if such currency of
denomination is a composite currency other than the ECU, the
agency or organization, if any, responsible for overseeing
such composite currency;
(15) if other than Dollars, the currency or currencies in
which payment of the principal of (and premium, if any) and
interest on the Securities of the series will be made, and
the currency or currencies, if any, in which payment of the
principal of (and premium, if any) or the interest on
Registered Securities of the series, at the election of each
of the Holders thereof, may also be payable, and the periods
within which and the terms and conditions upon which such
election is to be made, the manner in which the exchange
rate with respect to such payment shall be determined and
the agent appointed by the Company in connection with the
determination of the exchange rate, and whether Section 312
will be applicable to Securities of the Series;
(16) if the amount of payments of principal of (and
premium, if any) or interest on the Securities of the series
may be determined with reference to an index, the manner in
which such amounts shall be determined;
(17) whether and under what conditions additional amounts
shall be payable to Holders of Securities pursuant to or in
a manner different from Section 1010; and
(c) By adding the following at the end of Section 301:
Securities of any particular series may be issued at various
times, with different dates on which the principal or any
installment of principal is payable, with different rates of
interest, if any, or different methods by which rates of
interest may be determined, with different dates on which
such interest may be payable, with different Redemption
Dates and may be denominated in different currencies or
payable in different currencies.
6. The second sentence of Section 302 of the
Indenture is hereby amended by adding the following to the end
thereof:
, except that Bearer Securities of each series, if any,
shall be issuable in the denomination of $5,000.
7. Section 303 of the Indenture is hereby amended as
follows:
(a) By adding the following to the end of the first
paragraph:
Coupons shall bear the facsimile signature of the Treasurer
or any Assistant Treasurer of the Company.
(b) By adding the following to the end of the first
sentence of the third paragraph:
; provided, however, that in connection with its original
issuance, no Bearer Security (including any Security in
global form that is either a Bearer Security or exchangeable
for Bearer Securities) or Security delivered in exchange for
an interest in the temporary Global Security shall be mailed
or otherwise delivered to any location in the United States;
and provided further that a Bearer Security (other than a
temporary Global Security) and any Security delivered in
exchange for an interest in the temporary Global Security
may be delivered, in connection with its original issuance,
only if the Person entitled to receive such Security shall
have furnished either (i) a certificate in the form set
forth in Exhibit A to this Indenture, dated no earlier than
15 days prior to the earlier of the date on which such
Security is delivered or the date on which any temporary
Global Security first becomes exchangeable for such
Securities in accordance with the terms of such temporary
Security or this Indenture, or (ii) a certificate in the
form set forth in Exhibit D to this Indenture if such
certificate has been furnished after the Exchange Date. If
any Security is represented by a permanent Global Security
then, for the purposes of this Section and Section 304, the
notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a
portion of a temporary Global Security shall be deemed to be
delivery in connection with its original issuance of such
beneficial owner's interest in such permanent Global
Security. To the extent authorized in or pursuant to a
Board Resolution and set forth in an Officers' Certificate,
or established in one or more indentures supplemental
hereto, such Company Order may be given by any one officer
of the Company, may be electronically transmitted, and may
provide instructions as to registration of holders,
principal amounts, rates of interest, maturity dates and
other matters contemplated by such Board Resolution and
Officers' Certificate or supplemental indenture to be so
instructed in respect thereof. Before authorizing and
delivering the first Securities of any series (and upon
reasonable request of the Trustee thereafter), the Company
shall deliver to the Trustee (i) the certificates called for
under Sections 201 and 301 hereof and (ii) an Opinion of
Counsel described in the next sentence.
(c) By adding the following immediately after the third
paragraph:
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in
part in the form of one or more Global Securities, then the
Company shall execute and the Trustee shall, in accordance
with this Section and the Company Order with respect to such
series, authenticate and deliver one or more Global
Securities in temporary or permanent form that (i) shall
represent and shall be denominated in an amount equal to the
aggregate principal amount of Outstanding Securities of such
series to be represented by one or more Global Securities;
(ii) shall be registered, if in registered form, in the name
of the Depositary for such Global Security or Securities or
the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it
is exchanged in whole or in part for Securities in
definitive form in accordance with the provisions of the
Indenture and the terms of the Securities, this Security may
not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 301 for a
Global Security in registered form must, at the time of its
designation and at all times while it serves as Depositary,
be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or
regulation.
(d) By deleting the fourth paragraph and inserting the
following in its place:
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated as of
the date specified as contemplated by Section 301.
(e) By adding the following at the end of the fifth
paragraph:
Except as permitted by Section 306 or 307, the Trustee shall
not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been
detached and cancelled.
8. Section 304 of the Indenture is hereby amended by
deleting the text of Section 304 in its entirety and inserting
the following in its place:
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in
lieu of which they are issued, in registered form or, if
authorized, in bearer form with one or more coupons or
without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the
officers executing such Securities may determine, as
evidenced by their execution of such Securities. In the
case of any series issuable as Bearer Securities, such
temporary Securities may be in global form and shall be
delivered only in compliance with the applicable conditions
set forth in Section 303.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions
of the following paragraphs), if temporary Securities of any
series are issued, the Company will cause definitive
Securities of that series to be prepared without
unreasonable delay. Except as otherwise specified or
contemplated in Section 301 with respect to a series of
securities issuable as Bearer Securities, after the
preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or
agency of the Company maintained pursuant to Section 1002 in
a Place of Payment for such series for the purpose of
exchanges of Securities of such series, without charge to
the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series (accompanied by any
unmatured coupons appertaining thereto) the Company shall
execute and the Trustee shall authenticate and deliver in
exchange therefor a like aggregate principal amount of
definitive Securities of the same series and of like tenor
of authorized denominations; provided, however, that no
definitive Bearer Security shall be issued in exchange for a
temporary Registered Security.
If temporary Securities of any series are issued in global
form, any such temporary Global Security shall, unless
otherwise provided therein, be delivered to the London
office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euro-clear and CEDEL S.A.
for credit to the respective accounts of the beneficial
owners of such Securities (or to such other accounts as they
may direct).
Without unnecessary delay but in any event not later than
the date specified in, or determined pursuant to the terms
of, any such temporary Global Security of a series (the
"Exchange Date"), the company shall deliver to the Trustee
definitive securities of that series in aggregate principal
amount equal to the principal amount of such temporary
Global Security, executed by the Company. On or after the
Exchange Date such temporary Global Security shall be
surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities of
that series, without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of
such temporary Global Security a like aggregate principal
amount of definitive securities of the same series of
authorized denominations and of like tenor as the portion of
such temporary Global Security to be exchanged; provided,
however, that, unless otherwise specified in such temporary
Global Security, upon such presentation by the Common
Depositary, such temporary Global Security is accompanied by
a certificate dated the Exchange Date or a subsequent date
and signed by Euro-clear as to the portion of such temporary
Global Security held for its account then to be exchanged
and a certificate dated the Exchange Date or a subsequent
date and signed by CEDEL S.A. as to the portion of such
temporary Global Security held for its account then to be
exchanged, each in the form set forth in Exhibit B to this
Indenture. The definitive Securities to be delivered in
exchange for any such temporary Global Security shall be in
bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and,
if any combination thereof is so specified, as requested by
the beneficial owner thereof, provided, however that
definitive Securities shall be delivered in exchange for a
portion of a temporary Global Security only in compliance
with the requirements of Section 303.
Unless otherwise specified in such temporary Global
Security, the interest of a beneficial owner of Securities
of a series in a temporary Global Security shall be
exchanged for definitive Securities of the same series and
of like tenor following the Exchange Date upon the earlier
of (i) the receipt by Euro-clear or CEDEL S.A., as the case
may be, after the Exchange Date from the account holder of a
certificate in the form set forth in Exhibit D to this
Indenture, or (ii) the receipt by Euro-clear or CEDEL S.A.,
as the case may be, of instructions from the account holder
to request such exchange on his behalf and the delivery to
Euro-clear or CEDEL S.A., as the case may be, of a
certificate in the form set forth in Exhibit A to this
Indenture, dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be
available from the offices of Euro-clear and CEDEL S.A., the
Trustee, any Authenticating Agent appointed for such series
of Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such
exchange shall be made free of charge to the beneficial
owners of such temporary Global Security, except that a
Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event
that such Person does not take delivery of such definitive
Securities in person at the offices of Euro-clear or CEDEL
S.A. Definitive Securities to be delivered in exchange for
any portion of a temporary Global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as
definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest
payable on a temporary Global Security on any Interest
Payment Date for Securities of such series shall be payable
to Euro-clear and CEDEL S.A. on such Interest Payment Date
upon delivery by Euro-clear and CEDEL S.A. to the Trustee of
a certificate or certificates in the form set forth in
Exhibit C to this Indenture, for credit without further
interest on or after such Interest Payment Date to the
respective accounts of the Persons for which Euro-clear or
CEDEL S.A., as the case may be, hold such temporary Global
Security on such Interest Payment Date and who have each
delivered to Euro-clear or-CEDEL S.A., as the case may be, a
certificate in the form set forth in Exhibit D to this
Indenture. Any interest so received by Euro-clear and CEDEL
S.A. and not paid as herein provided shall be returned to
the Trustee immediately prior to the expiration of two years
after such Interest Payment Date in order to be repaid to
the Company in accordance with Section 1003.
9. Section 305 of the Indenture is hereby amended as
follows:
(a) By deleting the second paragraph in its entirety and
the first sentence of the third paragraph and inserting the
following in their place:
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency of
the Company maintained for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or
more new Registered Securities of the same series of any
authorized denomination or denominations, of like tenor and
aggregate principal amount.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities
in definitive form, a Global Security representing all or a
portion of the Securities of a series may not be transferred
except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such
successor Depositary.
At the option of the Holder, Registered Securities of any
series (except a Global Security) may be exchanged for other
Registered Securities of the same series of any authorized
denomination or denominations, of a like aggregate principal
amount, upon surrender of the Registered Securities to be
exchanged at such office or agency. Bearer Securities may
not be delivered by the Trustee in exchange for Registered
Securities.
At the option of the Holder, except as otherwise specified
as contemplated by Section 301 with respect to a Global
Security issued in bearer form, Bearer Securities of any
series may be exchanged for Registered Securities (if the
Securities of such series are issuable as Registered
Securities) or Bearer Securities (if Bearer Securities of
such series are issuable in more than one denomination) of
the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons
in default appertaining thereto; provided, however, delivery
of a Bearer Security shall occur only outside the United
States. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of
such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and
the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have
been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as
otherwise provided in Section 1002, interest represented by
coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing,
in case a Bearer Security of any series is surrendered at
such office or agency in exchange for a Registered Security
of the same series after the close of business at such
office or agency on (i) any Regular Record Date and before
the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such office or
agency on the related date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without
the coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be.
(b) By adding the following immediately after the third
paragraph:
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to
continue as Depositary for the Securities of such series or
if at any time the Depositary for the Securities of such
series shall no longer be eligible under Section 303, the
Company shall appoint a successor Depositary with respect to
the Securities of such series. If a successor Depositary
for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 301(13) shall no longer be
effective with respect to the Securities of such series and
the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the
form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon
receipt of a Company order for the authentication and
delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in
definitive form and in an aggregate principal amount equal
to the principal amount of the Global Security or Securities
representing such series in exchange for such Global
Security or securities.
If (a) there shall have occurred and be continuing an Event
of Default or an event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default
with respect to a series of Securities issued in the form of
one or more Global Securities, or (b) if specified by the
Company pursuant to Section 301 with respect to a series of
Securities, the Depositary for such series of Securities may
surrender a Global Security for such series of securities in
exchange in whole or in part for Securities of such series
in definitive form. Thereupon, the Company shall execute,
and the Trustee shall authenticate and deliver, without
service charge:
(i) to each Person specified by such Depositary a new
Security or Securities of the same series, of any
authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security
and the aggregate principal amount of Securities
delivered to Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will
authenticate and deliver Securities (a) in definitive
registered form in authorized denominations, if the
securities of such series are issuable as Registered
Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of
such series are issuable as Bearer securities or (c) as
either Registered or Bearer Securities, if the Securities of
such series are issuable in either form; provided, however,
that no definitive Bearer Security shall be delivered in
exchange for a temporary Global Security unless the Company
or its agent shall have received from the person entitled to
receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A hereto in
accordance with Section 303; and provided further that
delivery of a Bearer Security shall occur only outside the
United States; and provided further that no definitive
Bearer Security will be issued if the Company has reason to
know that such certificate is false.
Upon the exchange of a Global Security for Securities in
definitive form, such Global Security shall be cancelled by
the Trustee. Registered Securities issued in exchange for a
Global Security pursuant to this Section 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 Bearer Securities issued in exchange for a Global
Security pursuant to this Section to the persons, 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; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have
received from the person entitled to receive the definitive
Bearer Security a certificate substantially in the form set
forth in Exhibit A to this Indenture in accordance with
Section 303; and provided further that delivery of a Bearer
Security shall occur only outside the United States; and
provided further that no definitive Bearer Security will be
issued if the Company has reason to know that such
certificate is false.
(c) By adding the following to the end of the sentence
comprising the seventh paragraph:
, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series (if the
Securities of such series are issuable as Registered
Securities), provided that such Registered Security shall be
simultaneously surrendered for redemption with written
instruction for payment consistent with the provisions of
this Indenture.
10. The third paragraph of Section 306 is hereby amended by
adding the following to the end of the sentence comprising the
third paragraph:
; provided, however, that payment of principal of (and
premium, if any) and any interest on Bearer Securities shall,
except as otherwise provided in Section 1002, be payable only at
an office or agency located outside the United States; and
provided, further, that, with respect to any such coupons,
interest represented thereby (but not any additional amounts
payable as provided in Section 1010), shall be payable only upon
presentation and surrender of the coupons appertaining thereto.
11. Section 307 of the Indenture is hereby amended as
follows:
(a) By adding the following to the end of the first
paragraph:
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the
close of business (at an office or agency in a Place of
Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on
the next succeeding Interest Payment Date, such Bearer
Security shall be surrendered without the coupon relating to
such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered
Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture.
(b) By adding the following to the end of Section 307(l):
In case a Bearer Security of any series is surrendered
at the office or agency in a Place of Payment for such
series in exchange for a Registered Security of such
series after the close of business at such office or
agency on any Special Record Date and before the
opening of business at such office or agency on the
related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered
without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions
of this Indenture.
12. Section 308 of the Indenture is hereby amended by
adding the following to the end thereof:
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee
and any agent of the Company or the Trustee may treat the
bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon for
the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or
not such Bearer Security or coupon be overdue, and neither
the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as
between a Depositary and holders of beneficial interests in
any Global Security, the operation of customary practices
governing the exercise of the rights of the Depositary as
Holder of such Global Security. None of the Company, the
Trustee, any Paying Agent or the Security Registrar will
have any responsibility or liability for any aspect of the
records relating to or payments made on account of
beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
13. The Indenture is hereby amended by adding new Sections
311 and 312 immediately after Section 310, as follows:
SECTION 311. Certification by a Person Entitled to Delivery
of Bearer Security.
Whenever any provision of this Indenture or a Security
contemplates that certification be given by a Person
entitled to delivery of a Bearer Security, such
certification shall be provided substantially in the form of
Exhibit A hereto, with only such changes as shall be
approved by the Company.
SECTION 312. Judgments.
The Company may provide, pursuant to Section 301, for the
Securities of any series that, to the fullest extent
provided under applicable law, (a) the obligation, if any,
of the Company to pay the principal of (and premium, if any)
and interest on the Securities of such series and any
appurtenant coupons in a Foreign Currency, composite
currency or Dollars (the "Designated Currency") as may be
specified pursuant to Section 301 is of the essence and
agree that judgments in respect of such Securities shall be
given in the Designated Currency; (b) the obligation of the
Company to make payments in the Designated Currency of the
principal of (and premium, if any) and interest on such
Securities and any appurtenant coupons shall, notwith-
standing any payment in any other currency (whether
pursuant to a judgment or otherwise), be discharged only to
the extent of the amount in the Designated Currency that the
Holder receiving such payment may, in accordance with normal
banking procedures, purchase with the sum paid in such other
currency (after any premium and cost of exchange) in the
country of issue of the Designated Currency in the case of
Foreign Currency or Dollars or in the international banking
community in the case of a composite currency on the
Business Day immediately following the day on which such
Holder receives such payment; (c) if the amount in the
Designated Currency that may be so purchased for any reason
falls short of the amount originally due, the Company shall
pay such additional amounts as may be necessary to
compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a
separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.
14. Section 401 of the Indenture is hereby amended as
follows:
(a) By adding the following to the end of the first
parenthetical in the first paragraph: "and any right to receive
additional amounts as provided in Section 1010."
(b) By deleting in the parenthetical in Section 401(l)(A)
the word "and" immediately prior to subsection (ii), and adding
the following immediately after the end of subsection (ii):
(iii) coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and
maturing after such exchange, surrender of which is not
required or has been waived as provided in Section 305, and
(iv) coupons appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption Date,
surrender of which has been waived as provided in Section
1106
15. Section 506 of the Indenture is hereby amended
as follows:
(a) By adding the following to the end of clause SECOND of
Section 506:
Except to the extent otherwise provided in Section 312 if
such Section is specified as applicable to Securities of a
particular series, the Holders of each series of Securities
denominated in ECU, any other composite currency or a
Foreign Currency and any matured coupons relating thereto
shall be entitled to receive a ratable portion of the amount
determined by the exchange rate agent specified pursuant to
Section 301 by converting the principal amount Outstanding
of such series of Securities and matured but unpaid interest
on such series of Securities in the currency in which such
series of Securities is denominated into Dollars at the
Exchange Rate as of the date of declaration of acceleration
of the Maturity of the Debt Securities (or, if there is no
such rate on such date, such rate as determined by such
exchange rate agent).
(b) By adding the following to the end thereof:
Upon receipt by the Trustee of any declaration of
acceleration, or rescission and annulment thereof, with
respect to Securities of a series all or part of which is
represented by a Global Security, the Trustee shall
establish a record date for determining Holders of
Outstanding Securities of such series entitled to join in
such declaration of acceleration, or rescission and
annulment, as the case may be, which record date shall be at
the close of business on the day the Trustee receives such
declaration of acceleration, or rescission and annulment, as
the case may be. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be
entitled to join in such declaration of acceleration, or
rescission and annulment, as the case may be, whether or not
such Holders remain Holders after such record date;
provided, that unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage
having been obtained prior to the day which is 90 days after
such record date, such declaration of acceleration, or
rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be
cancelled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder,
from giving, after expiration of such 90-day period, a new
declaration of acceleration, or rescission or annulment
thereof, as the case may be, that is identical to a
declaration of acceleration, or rescission or annulment
thereof, which has been cancelled pursuant to the proviso to
the preceding sentence, in which event a new record date
shall be established pursuant to the provisions of this
Section 502.
16. Section 512 of the Indenture is hereby amended by
adding the following to the end thereof:
Upon receipt by the Trustee of any such direction with
respect to Securities of a series all or part of which is
represented by a Global Security, the Trustee shall
establish a record date for determining Holders of
Outstanding Securities of such series entitled to join in
such direction, which record data shall be at the close of
business on the day the Trustee receives such direction.
The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in
such direction, whether or not such Holders remain Holders
after such record date; provided, that unless such majority
in principal amount shall have been obtained prior to the
day which is 90 days after such record date, such direction
shall automatically and without further action by any Holder
be cancelled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder,
from giving, after expiration of such 90-day period, a new
direction identical to a direction which has been cancelled
pursuant to the proviso to the preceding sentence, in which
event a new record date shall be established pursuant to the
provisions of this Section 512.
17. Section 513 of the Indenture is hereby amended by
adding the following to the end thereof:
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons
entitled to waive any past default hereunder. If a
record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such
Persons, shall be entitled to waive any default
hereunder, whether or not such Holders remain Holders
after such record date; provided, that unless such
majority in principal amount shall have been obtained
prior to the date which is 90 days after such record
date, any such waiver previously given shall
automatically and without further action by any Holder
be cancelled and of no further effect.
18. Section 608(b) of the Indenture is hereby amended by
deleting the words "by mail" and inserting the following in their
place:
in the manner and to the extent provided in Section
703(c)
19. Section 610(f) of the Indenture is hereby amended by
deleting the words "by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities
of such series as their names and addresses appear in the
Security Register", and inserting in their place the words "in
the manner provided in Section 106."
20. Section 701 of the Indenture is hereby amended by
adding the following to the end thereof:
The Trustee shall preserve for at least two years the
names and addresses of Holders of Bearer Securities
filed with the Trustee pursuant to Section 703(c).
21. Section 703 of the Indenture is hereby amended as
follows:
(a) By deleting the following in the first sentence of
Section 703(b): "as their names and addresses appear in the
Security Register," and inserting in its place the following: ",
as provided in Section 703(c)."
(b) By relettering Section 703(c) as Section 703(d) and
inserting the following immediately prior to new Section 703(d):
(c) Reports pursuant to this Section shall be
transmitted by mail:
(1) to all Holders of Registered Securities, as the
names and addresses of such Holders appear in the
Security Register;
(2) to such Holders of Bearer Securities as have,
within the two years preceding such transmission, filed
their names and addresses with the Trustee for that
purpose; and
(3) except in the case of reports pursuant to
Subsection (b) of this Section, to each Holder of a
Security whose name and address is preserved at the
time by the Trustee, as provided in Section 702(a).
22. Section 704(3) of the Indenture is hereby amended by
deleting the words "as their names and addresses appear in the
Security Register", and inserting the following in their place:
in the manner and to the extent provided in Section 703(c)
with respect to reports pursuant to Section 703(a)
23. Section 801(l) of the Indenture is hereby amended to
insert the following immediately after the words "interest on all
the Securities":
(including all additional amounts, if any, payable pursuant
to Section 1010)
24. Section 901(4) of the Indenture is hereby amended by
deleting the same in its entirety, and inserting the following in
its place:
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any
restrictions on the payment of principal (or premium, if
any) on Registered Securities or of principal (or premium,
if any) or any interest on Bearer Securities, to permit
Registered Securities to be exchanged for Bearer securities,
provided any such action shall not adversely affect the
interests of the Holders of Securities of any series or any
related coupons in any material respect; or
25. Section 902 of the Indenture is hereby amended as
follows:
(a) By adding to the end of Section 902(l) the following:
"change any obligation of the Company to pay additional amounts
pursuant to Section 1010 (except as contemplated by Sections 301
or 801(l) or permitted by Section 901(l)), or"
(b) By adding to the end of Section 902(2) the following:
"reduce the requirements of Section 1404 of quorum or voting, or"
(c) By adding to the end of Section 902 the following:
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to
consent to any indenture supplemental hereto. If a record
date is fixed, the Holders on such record date or their duly
designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not
such Holders remain Holders after such record date;
provided, that unless such consent shall have become
effective by virtue of the requisite percentage having been
obtained prior to the date which is 90 days after such
record date, any such consent previously given shall
automatically and without further action by any Holder be
cancelled and of no further effect.
26. Section 1001 of the Indenture is hereby amended by
adding the following to the end thereof:
Any interest due on Bearer Securities on or before
Maturity, other than additional amounts, if any,
payable as provided in Section 1010 in respect of
principal of (or premium, if any, on) such a Security,
shall be payable only upon presentation and surrender
of the several coupons for such interest installments
as are evidenced thereby as they severally mature.
27. Section 1002 of the Indenture is hereby amended as
follows:
(a) By adding the following immediately after the
first sentence of the first paragraph:
If Securities of a series are issuable as Bearer Securities,
the Company will maintain, subject to any laws or
regulations applicable thereto, (A) an office or agency in a
Place of Payment for such series that is located outside the
United States where Securities of such series and the
related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on
Securities of such series pursuant to Section 1010);
provided, however, that if the Securities of such series are
listed on The International Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock
Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the
Company will maintain a Paying Agent in London or Luxembourg
or any other required city located outside the United
States, as the case may be, so long as the Securities of
such series are listed on such exchange, and (B) an office
or agency in a Place of Payment for such series that is
located outside the United States where any Registered
Securities of such series may be surrendered for
registration of transfer, where securities of that series
may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities
of that series and the Indenture may be served.
(b) By adding the following to the end of the former
third sentence of the first paragraph:
; provided that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on
Bearer Securities of that series pursuant to Section 1010)
at the place specified for the purpose pursuant to Section
301 or, if no such place is specified, at the main office of
the Trustee in London.
(b) By adding the following immediately after the first
paragraph:
No payment of principal of or premium or interest on Bearer
Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any
address in the United States or by transfer to an account
maintained with a bank located in the United States;
provided, however, that, if the Securities are denominated
and payable in Dollars, payment of principal of and any
premium and interest (including any additional amounts
payable in respect thereof pursuant to Section 1010) on any
Bearer Security shall be made in Dollars at the Corporate
Trust Office of the Trustee in the Borough of Manhattan, The
City of New York if (but only if) payment of the full amount
of such principal, premium, interest or additional amounts
at all offices outside the United States maintained for the
purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or
other similar restrictions.
28. The fifth paragraph of Section 1003 of the Indenture is
hereby further amended as follows:
(a) By changing the words "three years" to "two years".
(b) By deleting the words "in a newspaper published in the
English language, customarily published on each Business Day and
of general circulation in the Borough of Manhattan, The City of
New York" from the proviso in said fifth paragraph, and inserting
the following in their place:
in an Authorized Newspaper of general circulation in the
Borough of Manhattan, The City of New York, and each Place
of Payment
29. The Indenture is hereby amended by adding a new Section
1010 immediately after Section 1009 as follows:
SECTION 1010. Payment of Additional Amounts.
If the Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of
any Security of any series or any coupon appertaining
thereto additional amounts upon the terms and subject to the
conditions provided therein. Whenever in this Indenture
there is mentioned, in any context, the payment of the
principal of (or premium, if any) or interest on, or in
respect of, any Security of any series or any related coupon
or the net proceeds received on the sale or exchange or any
Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts
provided for in the terms of such Securities and this
Section to the extent that, in such context, additional
amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express
mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding
additional amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first
Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not
bear interest prior to the Maturity, the first day on which
a payment of principal (and premium, if any) is made, and at
least 10 days prior to each date of payment of principal
(and premium, if any) or interest if there has been any
change with respect to the matters set forth in the below-
mentioned Officers' Certificate, the Company will furnish
the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or
Paying Agents whether such payment of principal of (and
premium, if any) or interest on the Securities of that
series shall be made to Holders of Securities of that series
or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of
that series. If any such withholding shall be required,
then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to
such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional
amounts, if any, required by the terms of such Securities
and the first paragraph of this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for,
and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with Actions
taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section 1010.
30. The first paragraph of Section 1104 of the Indenture is
hereby amended to delete the words "by first-class mail, postage
prepaid, mailed"; to insert the following in their place: "in the
manner provided in Section 106;" and to delete the words "at his
address appearing in the Security Register."
31. Section 1106 of the Indenture is hereby amended as
follows:
(a) By adding the following to the end of the first
sentence of the first paragraph:
and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided
below, shall be void.
(b) By adding the following immediately prior to the
proviso to the second sentence of the first paragraph:
provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and
surrender of coupons for such interest (at an office or
agency located outside the United States except as otherwise
provided in Section 1002), and
(c) By adding the following immediately following the first
paragraph:
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Bearer Security may be paid after
deducting from the Redemption Price an amount equal to the
face amount of all such missing coupons, or the surrender of
such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security
or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such
Bearer Security shall surrender to the Trustee or any Paying
Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by
coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located
outside of the United States except as otherwise provided in
Section 1002.
32. Section 1107 of the Indenture is hereby amended to add
the following to the end of the sentence comprising Section 1107:
, except that if a Global Security is so surrendered, the
Company shall execute, and the Trustee shall authenticate
and deliver to the Depositary for such Global Security,
without service charge, a new Global Security in a
denomination equal to and in exchange for the unredeemed
portion of the principal of the Global Security so
surrendered.
33. Section 1202(l) of the Indenture is hereby amended to
add the following after the parenthetical and immediately prior
to the word "and":
, together in the case of any Bearer Securities of such
series with all unmatured coupons appertaining thereto,
34. Section 1302(B) of the Indenture is hereby amended to
add the words "and Section 1010" at the end thereof.
35. The Indenture is hereby amended to add a new Article
Fourteen as follows:
ARTICLE FOURTEEN
MEETINGS OF HOLDERS
SECTION 1401. Purposes for Which Meetings May be Called.
If Securities of a series are issuable in whole or in part
as Bearer Securities, a meeting of Holders of Securities of
such series may be called at any time and from time to time
pursuant to this Article to make, give or take any request,
demand, authorization, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of any series issuable in whole or in
part as Bearer Securities for any purpose specified in
Section 1401, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, or in
London, as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting
forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall
be given,in the manner provided in Section 106, not less
than 21 or more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Company, pursuant to a
Board Resolution, or the Holders of at least 10% in
principal amount of the Outstanding Securities of any series
shall have requested the Trustee to call a meeting of the
Holders of Securities of such series for any purpose
specified in Section 1401, by written request setting forth
in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series
in the amount above specified, as the case may be, may
determine the time and the place in the Borough of
Manhattan, The City of New York, or in London for such
meeting and may call such meeting for such purposes by
giving notice thereof as provided in Subsection (a) of this
Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
securities of any series, a Person shall be (1) a Holder of
one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of
such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in principal amount
of the outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such
series; provided, however, that if any action is to be taken
at such meeting with respect to a consent or waiver which
this Indenture expressly provides may be given by the
Holders of not less than 66 2/3% in principal amount of the
outstanding Securities of a series, the Persons entitled to
vote 66 2/3% in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be
dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as
provided in Section 1402(a), except that such notice need be
given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such
series that shall constitute a quorum.
Except as limited by the first proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be
adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities
of that series; provided, however, that, except as limited
by such first proviso to Section 902, any resolution with
respect to any consent or waiver which this Indenture
expressly provides may be given by the Holders of not less
than 66 2/3% in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is
present as aforesaid only by the affirmative vote of the
Holders of 66 2/3% in principal amount of the Outstanding
Securities of that series; and provided further that, except
as limited by such first proviso to Section 902, any
resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other
Act which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of
the Holders of such specified percentage in principal amount
of the outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance
with this Section shall be binding on all the Holders of
Securities of such series and the related coupons, whether
or not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders of
Securities of such series in regard to proof of the holding
of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104 or, in the case of
Bearer Securities, by having the signature of the person
executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify
to holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular
on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders
of Securities as provided in Section 1402(b), in which case
the Company or the Holders of Securities of the series
calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal
amount of the Outstanding securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such
series or proxy shall be entitled to one vote for each
$1,000 principal amount (or the equivalent in ECU, any other
composite currency or a Foreign Currency) of securities of
such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series
duly pursuant to Section 1402 at which a quorum is present
may be adjourned from time to time by Persons entitled to
vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and
the meeting may be held as so adjourned without further
notice.
SECTION 1406. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written
ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their
representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities of such series
held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of
the meeting their verified written reports in triplicate of
all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary
of the meeting and there shall be attached to said record
the original reports of the inspectors of votes on any vote
by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy
of the notice of the meeting and showing that said notice
was given as provided in Section 1402 and, if applicable,
Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company,
and another to the Trustee to be preserved by the Trustee,
the latter of have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
36. The indenture is hereby amended by adding Exhibits A,
B, C and D to the end thereof, as such Exhibits are attached to
this second Supplemental Indenture.
37. All provisions of this Second Supplemental Indenture
shall be deemed to be incorporated in, and made a part of, the
Indenture; and the Indenture, as supplemented by this Second
Supplemental Indenture, shall be read, taken and construed as one
and same instrument.
38. The Trustee accepts the trusts created by the
Indenture, as supplemented by this Second Supplemental Indenture,
and agrees to perform the same upon the terms and conditions in
the Indenture, as supplemented by the Second Supplemental
Indenture.
39. The recitals contained in the Indenture and the
Securities, except the Trustee's certificate of authentication,
shall be taken as statement of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of the
Indenture or the Securities.
40. All amendments to the Indenture made hereby shall have
effect only with respect to the Securities of any series created
on or after the date hereof, and not with respect to the
Securities of any series created prior to the date hereof.
41. All capitalized terms used and not defined herein shall
have the respective meanings assigned to them in the Indenture.
42. This Second Supplemental Indenture may be executed in
any number of counterparts, each of which when so executed shall
be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Second Supplemental Indenture to be duly executed, and their
respective seals to be hereunto affixed and attested, all as of
the date first above written.
THE MEAD CORPORATION
By: -------------------------------
Title:
[Corporate Seal]
Attest:
---------------------------
Title:
BANKERS TRUST COMPANY
By: -------------------------------
Title:
[Corporate Seal]
Attest:
---------------------------
Title:
STATE OF )
) s.s:
COUNTY OF )
On the day of October, 1989, before me
personally came , to be known, who, being duly
sworn, did depose and say that he is of THE MEAD
CORPORATION, one of the corporations described in and which
executed the foregoing 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.
STATE OF )
) s.s:
COUNTY OF )
On the ---- day of October, 1989, before me
personally came --------------------, to be known, who, being duly
sworn, did depose and say that he is ---------------- of BANKERS
TRUST COMPANY, one of the corporations described in and which
executed the foregoing 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.
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY PERSON
ENTITLED TO RECEIVE BEARER SECURITY OR SECURITY
INITIALLY REPRESENTED BY TEMPORARY GLOBAL SECURITY]
CERTIFICATE
----------------------------
(Insert title or sufficient description
of Securities to be Delivered)
This is to certify that the above-captioned Securities is
not being acquired by or on behalf of a United States person, or
for offer to resell or for resale to a United States person, or
any person inside the United States, or, if a beneficial interest
in the Securities is being acquired by a United States person,
that such United States person is a financial institution within
the meaning of Section 1.165-12(c)(1)(v) of the United States
Treasury Regulations or is acquiring through such a financial
institution and that in either case the Securities are held by a
financial institution that has agreed in writing to comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations
thereunder and that is not purchasing for offer to resell or for
resale inside the United States. If this certificate is being
provided by a clearing organization, it is based on similar
certificates provided to it by its member organizations;
provided, however, that, if the undersigned has actual knowledge
that the information contained in such a certificate is false
(and, absent documentary evidence that the beneficial owner of
such Security is not a United States person, it will be deemed to
have actual knowledge that such beneficial owner, other than a
financial institution described above, is a United States person
if it has a United States address for such beneficial owner), the
undersigned will not deliver a Security in temporary or
definitive bearer form, to the person who signed such certificate
notwithstanding the delivery of such certificate to the
undersigned.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction, and "United States person" means any citizen or
resident of the United States, any corporation, partnership or
other entity created or organized in or under the laws of the
United States and any estate or trust the income of which is
subject to Federal income taxation regardless of its source.
We undertake to advise you by telex if the above statement
as to beneficial ownership is not correct on the date of delivery
of the above-captioned Securities as to all of such securities.
We understand that this certificate is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated:------------------, 19--
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF
A TEMPORARY GLOBAL SECURITY]
CERTIFICATE
---------------------------
(Insert title or sufficient description
of Securities to be delivered)
This is to certify with respect to $--------- principal
amount of the above-captioned Securities that we have received
from each of the persons appearing in our records as persons
entitled to a portion of such principal amount (our "Qualified
Account Holders") a certificate with respect to such portion
substantially in the form attached hereto.
We further certify that as of the date hereof we have not
received any notification from any of our Qualified Account
Holders to the effect that the statements made by such Qualified
Account Holders with respect to any portion of the part submitted
herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Dated:-----------------, 19--.
[To be dated no earlier than
the Exchange Date]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, AS
OPERATOR OF THE EURO-
CLEAR SYSTEM]
[CEDEL S.A.]
By-------------------------
EXHIBIT C
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
AND CEDEL S.A. TO OBTAIN INTEREST]
CERTIFICATE
-----------------------
[Insert title or sufficient description of Securities]
We confirm that the interest payable on the Interest Payment
Date(s) on [Insert Date(s)] will be paid to each of the persons
appearing in our records as being entitled to interest payable on
such date from whom we have received a written certification,
dated not earlier than such Interest Payment Date(s),
substantially in the form attached hereto.
We undertake that any interest received by us and not paid
as provided above shall be returned to the Trustee for the above
Securities immediately prior to the expiration of two years after
such Interest Payment Date in order to be repaid by such Trustee
to the above issuer at the end of two years after such Interest
Payment Date.
Dated:------------------, 19--.
[To be dated on or after the
most recent Interest Payment Date]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, AS
OPERATOR OF THE EURO-
CLEAR SYSTEM]
[CEDEL S.A.]
By----------------------------
EXHIBIT D
[FORM OF CERTIFICATE TO BE GIVEN BY
ACCOUNT HOLDERS TO OBTAIN INTEREST}
CERTIFICATE
------------------------
[Insert title or sufficient description of Securities]
This is to certify that (i) as of the Interest Payment
Date(s) on [Insert Date(s)], none of the above-captioned
Securities held by you for our account was beneficially owned by
a United States person or, if any of such Securities held by you
for our account were beneficially owned by a United States
person, such United States person was a financial institution as
defined in section 1.165-12(c)(1)(v) of the United States
Treasury Regulations under the Internal Revenue Code of 1986, as
amended or acquired such Securities through a financial
institution and that such Securities were held by a financial
institution that agreed to comply with Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986 and the regulations
thereunder and that was not purchasing for offer to resell or for
resale inside the United States (a "qualifying financial
institution") and (ii) the above-captioned Securities are not
being acquired by or on behalf of a United States person or for
offer to resell or for resale to a United States person or any
person inside the United States or, if a beneficial interest in
the Securities is being acquired by or on behalf of a United
States person, that such United States person is a qualifying
financial institution. If the undersigned is a clearing
organization, the undersigned has obtained a similar certificate
from its member organizations on which this certificate is based;
provided that, if the undersigned has actual knowledge that the
information contained in such a certificate is false, the
undersigned will not pay interest in respect of such Securities
to, or credit interest in respect of such Securities to the
account of, or deliver a security in temporary or definitive
beater form to, the person who signed such certificate,
notwithstanding the delivery of such certificate to the
undersigned.
As used herein, "United States person" means any citizen or
resident of the United States, any corporation, partnership or
other entity created or organized in or under the laws of the
United States and any estate or trust the income of which is
subject to United States Federal income taxation regardless of
its source, and "United States" means the United States of
America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: -------------------, 19--.
{To be dated on or after the
most recent Interest Payment Date]
[Name of Person Entitled
to Receive Interest]
----------------------------
(Authorized Signatory)
Name:-----------------------
Title:----------------------