Exhibit 4(d)
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THE XXXX CORPORATION
TO
BANKERS TRUST COMPANY, TRUSTEE
------------------------------
Third Supplemental Indenture
Dated as of November --, 1991
TO INDENTURE
Dated as of July 15, 1982
As Amended by
First Supplemental Indenture
Dated as of March 1, 1987
And As Amended by
Second Supplemental Indenture
Dated as of October 15, 1989
THIRD SUPPLEMENTAL INDENTURE, dated as of November __, 1991,
between THE XXXX 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, a First
Supplemental Indenture (the "First Supplemental Indenture"), dated
as of March 1, 1987, and a Second Supplemental Indenture (the
"Second Supplemental Indenture"), dated as of October 15, 1989 (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 Third 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 Third 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. References to "The International Stock Exchange of the
United Kingdom and the Republic of Ireland" in Sections
106 and 1002 are hereby amended to "the London Stock
Exchange."
2. The definition of "United States" in Section 101 of the
Indenture is hereby amended to read in full as follows:
"United States" means the United States of America
(including the States thereof and the District of
Columbia), and its possessions, which include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands.
3. Section 302 of the Indenture is hereby amended to read
in full as follows:
Unless otherwise provided as contemplated by Section 301
with respect to the Securities of any series, the
Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple
thereof, except that Bearer Securities of each series,
if any, shall be issuable in the denomination of $5,000.
4. The proviso to the first sentence of the third paragraph
of Section 303 is hereby amended to read in full as
follows:
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 a certificate in the form set forth
in Exhibit A to this Indenture, dated no earlier than 15
days prior to (i) any Interest Payment Date that occurs
prior to the Exchange Date (as defined in Section 304)
with respect to a temporary Global Security for such
Security or (ii) 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.
5. The proviso to the second sentence of the fourth
paragraph of Section 304 is hereby amended to read in
full as follows:
provided, however, that, unless otherwise specified in
such temporary Global Security, or unless interest is
payable on the temporary Global Security on an Interest
Payment Date occurring prior to the Exchange Date for
Securities of such series and the certifications
described in the second succeeding paragraph hereafter
is provided, 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.
6. The first sentence of the fifth paragraph of Section
304 is hereby amended in full as follows:
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 receipt by 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 (i) any Interest Payment Date that occurs
prior to the Exchange Date or (ii) 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.
7. The sixth paragraph of Section 304 is hereby amended in
full as follows:
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
no interest shall be payable on a temporary Global
Security on any Interest Payment Date occurring after
the Exchange Date for Securities of such series. Unless
otherwise specified as contemplated by Section 301,
interest payable on a temporary Global Security on any
Interest Payment Date prior to the Exchange Date for
Securities of such series shall be payable to Euro-clear
and CEDEL S.A. on such Interest Payment Date only upon
delivery by Euro-clear and CEDEL S.A. to the Trustee of
a certificate or certificates in the form set forth in
Exhibit B to this Indenture, dated no earlier than 15
days prior to the Interest Payment Date, 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,
holds such temporary Global Security on such Interest
Payment Date and who have each delivered to Euro-clear
and CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit A to this Indenture.
Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this
paragraph shall satisfy the certification requirements
of the preceding two paragraphs of this Section 304 and
of the tenth paragraph of Section 305. The delivery of
such certification by Persons for whom Euro-clear or
CEDEL S.A., as the case may be, holds such temporary
Global Security shall constitute irrevocable
instructions by such Person to Euro-clear or CEDEL S.A.
to exchange such Person's interest in the temporary
Global Security for definitive Securities of the same
series and of like tenor on the Exchange Date. 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.
8. The first proviso to the third sentence of the tenth
paragraph of Section 305 is hereby amended in full as
follows:
provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Global
Security except in accordance with the delivery of a
certificate required by Section 304;
9. Exhibits A, B, C and D to the Indenture are hereby
deleted, and new Exhibits A and B are added to the end
thereof, as such Exhibits are attached to this Third
Supplemental Indenture.
10. All provisions of this Third Supplemental Indenture
shall be deemed to be incorporated in, and made a part
of the Indenture; and the Indenture, as supplemented by
the First Supplemental Indenture, the Second
Supplemental Indenture and this Third Supplemental
Indenture, shall be read, taken and construed as one and
same instrument.
11. The Trustee accepts the trusts created by the Indenture,
as supplemented by this Third Supplemental Indenture,
and agrees to perform the same upon the terms and
conditions in the Indenture, as supplemented by the
First Supplemental Indenture, the Second Supplemental
Indenture and this Third Supplemental Indenture.
12. 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.
13. 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.
14. All capitalized terms used and not defined herein shall
have the respective meanings assigned to them in the
Indenture.
15. Except to the extent specifically provided therein, no
provision of this Third Supplemental Indenture or any
future supplemental indenture is intended to modify, and
the parties do hereby adopt and confirm, the provisions
of Section 318(c) of the Trust Indenture Act which amend
and supersede provisions of the Indenture in effect
prior to November 15, 1990.
16. This Third 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 Third
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 XXXX CORPORATION
By:---------------------------
Title:
[Corporate Seal]
Attest:
-----------------------------
Title:
BANKERS TRUST COMPANY
By:---------------------------
Title:
(Corporate Seal]
Attest:
-----------------------------
Title:
State of )
) ss:
County of )
On the -- day of November, 1991, before me personally
came ---------------------, to be known, who being duly sworn, did
depose and say that he is ------------------------- of THE XXXX
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.
------------------------------------
Notary Public
State of )
) ss:
County of )
On the ---- day of November, 1991, 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.
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Notary Public
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE}
CERTIFICATE
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[Insert title or sufficient description of Securities to be delivered]
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for
our account (i) are owned by persons(s) that are not citizens or
residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject
to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States
person(s) that are (a) foreign branches of United States financial
institutions (as defined in United States Treasury Regulations
Section 1.165-12(c)(1)(v)) purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institutions
and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on
its own behalf or through its agent, that you may advise the
Issuer or its agent that such financial institution will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or
foreign financial institutions for purposes of resale during the
restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if
the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes
of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex or by
electronic transmission on or prior to the date on which you
intend to submit your certification relating to the above-
captioned Securities held by you for our account in accordance
with your Operating Procedures if any applicable statement herein
is not correct on such date, and in the absence of any such
notification it may be assumed that this certification applies as
of such date.
This certificate excepts and does not relate to
of such interest in the above-captioned Securities in respect of
which we are not able to certify and as to which we understand an
exchange for an interest in a permanent Global Security or an
exchange for and delivery of definitive Securities (or, if
relevant, collection of an interest) cannot be made until we do so
certify.
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.
Date:--------------------, 19--
[To be dated no earlier
than the 15th day prior to
(i) the Exchange Date or (ii)
the relevant Interest Payment
Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making
Certification]
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(Authorized Signatory)
Name:
Title:
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 OR TO OBTAIN
INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE]
CERTIFICATE
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[Insert title or sufficient description of Securities to be delivered]
This is to certify that based solely on written
certifications that we have received in writing, by tested telex
or by electronic transmission from each of the persons appearing
in our records as persons entitled to a portion of the principal
amount set forth below (our "Member Organizations") substan-
tially in the form attached hereto, as of the date hereof,
principal amount of the above-captioned Securities (i) is owned by
person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a)
foreign branches of United States financial institutions (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v))
purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the
Securities through such United States financial institutions on
the date hereof (and in each case (a) or (b), each such financial
institution has agreed, on its own behalf or through its agent,
that we may advise the Issuer or its agent that such financial
institution will 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), or (iii) is owned by
United States or foreign financial institutions(s) for purposes of
resale during the restricted period (as defined in United States
Treasury Regulations (Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect, that financial institutions described in clause
(iii) above (whether or not also described in clause (i) and (ii))
have certified that they have not acquired the Securities for
purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and
its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any
interest) any portion of the temporary Global Security
representing the above-captioned Securities excepted in the above-
referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by
such Member Organizations with respect to any portion of the part
submitted herewith for exchange (or, if relevant, collection of
any interest) are no longer true and cannot be relied upon as of
the date hereof.
We understand that this certification 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.
Date:---------------------, 19--
[To be dated no earlier
than the Exchange Date
or the relevant Interest
Payment Date occurring
prior to the Exchange
Date, as applicable]
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
BRUSSELS OFFICE, as
Operator of the
Euro-clear System]
[CEDEL S.A.]
By -----------------------------------
