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Exhibit 4.6
ALCAN ALUMINIUM LIMITED
and
BANKERS TRUST COMPANY,
Trustee
________________________________
Fifth Supplemental Indenture
Dated as of January 1, 1995
________________________________
Supplemental to the
Indenture dated as of May 15, 1983,
as supplemented by a First
Supplemental Indenture dated
as of January 1, 1986,
a Second Supplemental
Indenture dated as of
June 30, 1989, a
Third Supplemental
Indenture dated as of
July 19, 1989, and
a Fourth Supplemental
Indenture dated as of
July 17, 1990
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THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of January 1, 1995, between
Alcan Aluminium Limited, a corporation duly organized and existing under the
laws of Canada (the "New Issuer"), and Bankers Trust Company, a banking
corporation duly organized and existing under the laws of the State of New York
(the "Trustee"),
W I T N E S S T H:
WHEREAS, Alcan Aluminium Limited, a corporation duly organized and existing
under the laws of Canada (the "Old Issuer"), has duly authorized the issue from
time to time of its unsecured debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be authorized in accordance
with the terms of the Indenture dated as of May 15, 1983 between the Old Issuer
and the Trustee, as amended by the First Supplemental Indenture thereto dated as
of January 1, 1986, a Second Supplemental Indenture thereto dated as of June 30,
1989, a Third Supplemental Indenture thereto dated as of July 19, 1989, and a
Fourth Supplemental Indenture thereto dated as of July 17, 1990 (as so amended,
the "Indenture"), and to provide, among other things, for the authentication,
delivery and administration thereof, the Old Issuer duly authorized the
execution and delivery of the Indenture;
WHEREAS, ten series of Securities, the Old Issuer's $100,000,000 in
aggregate principal amount of 9 7/8% Debentures Due 1998, the Old Issuer's
$150,000,000 in aggregate principal amount of 9 5/8% Sinking Fund Debentures Due
2019, the Old Issuer's $100,000,000 in aggregate principal amount of 9 1/2%
Debentures Due 2010, the Old Issuer's $150,000,000 in aggregate principal amount
of 9.40% Debentures Due 1995, the Old Issuer's $125,000,000 in aggregate
principal amount of 9.70% Debentures Due 1996, the Old Issuer's $150,000,000 in
aggregate principal amount of 9.20% Debentures Due 2001, the Old Issuer's
$125,000,000 in aggregate principal amount of 9.10% Debentures Due 1998, the Old
Issuer's $150,000,000 in aggregate principal amount of 8.20% Debentures Due
1996, the Old Issuer's $150,000,000 in aggregate principal amount of 8 7/8%
Debentures Due 2022, and the Old Issuer's $150,000,000 in aggregate principal
amount of 5 7/8% Debentures Due 2000, have been issued pursuant to the
Indenture;
WHEREAS, pursuant to a vertical short-form amalgamation effected under the
Canada Business Corporations Act on the date hereof (the "Amalgamations"), Alcan
Aluminium Holdings Limited, a wholly-owned subsidiary of the Old Issuer
("Holdings") was amalgamated with the Old Issuer, with the corporation resulting
from the Amalgamation being the New Issuer;
WHEREAS, Section 9.1 of the Indenture provides that the Old Issuer shall
not amalgamate with any other corporation unless, INTER ALIA, the corporation
formed by such amalgamation expressly assumes by supplemental indenture the due
and punctual payment of the principal of and interest on all the Securities and
the performance of every covenant of the Indenture to be performed or observed
by the Old Issuer; and
WHEREAS, the New Issuer is duly authorized to execute and deliver this
Fifth Supplemental Indenture, and all other things necessary to make the
Indenture, as hereby supplemented and amended, a valid indenture and agreement
according to its terms have been done;
NOW, THEREFORE,
In consideration of the premises and of the covenants contained in the
Indenture, the New Issuer has executed and delivered this Fifth Supplemental
Indenture.
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SECTION 1. DEFINITIONS.
All references to the "Issuer" shall, pursuant to the definition thereof in
Section 1.1 of the Indenture, hereafter mean the New Issuer.
SECTION 2. ASSUMPTION OF OBLIGATIONS.
The New Issuer, as the corporation resulting from the Amalgamation and
successor corporation to the Old Issuer under Section 9.3 of the Indenture,
hereby assumes the performance of every covenant to be performed or observed by
the Old Issuer under the Indenture and the due and punctual payment of the
principal of and interest on all the Securities outstanding on the date hereof.
SECTION 3. RATIFICATION OF THE INDENTURE.
As hereby amended and supplemented, the Indenture is hereby ratified and
its provisions confirmed in all respects. The recitals contained herein shall be
taken as the statements of the New Issuer and the Trustee assumes no
responsibility for the correctness of such recitals. The Trustee makes no
representation as to the validity of this Fifth Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above written.
ALCAN ALUMINIUM LIMITED
By /s/ P.K. Pal
-----------------------------
Title: Vice President
(Corporate Seal)
Attest:
By /s/ Xxxxx Xxxxxxx
-----------------------------
Title: Assistant Secretary
BANKERS TRUST COMPANY, as Trustee
By /s/
-------------------------------
Title: ASSISTANT VICE PRESIDENT
(Corporate Seal)
Attest:
By /s/
-----------------------------
Title: Official Assistant
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CANADA )
PROVINCE OF QUEBEC ) s.s.:
DISTRICT OF MONTREAL )
On this 16th day of December, 1994 before me personally came P.K. Pal, to
me personally known, who, being by me duly sworn, did depose and say that he
resides at 0000 Xxxxxxx, Xxxxxxxx, XX, that he is Vice President of Alcan
Aluminium Limited, one of the corporations described in and which executed the
above instrument; 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.
(SEAL)
/s/ Xxxx X. Xxxxxx
--------------------------
Commissioner of Oaths
STATE OF NEW YORK )
s.s.:
COUNTY OF NEW YORK )
On this 24th day of January, 1995 before me personally came Xxxx X.
Xxxxxxxx, to me personally known, who, being by me duly sworn, did depose and
say that he resides at New York, NY , that he is an Asst.
V.P. of Bankers Trust Company, one of the corporations described in and which
executed the above instrument; and that he knows the corporate 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.
(NOTARIAL SEAL)
/s/ Xxxxxxxx Xxxxxx
--------------------------
Notary Public
XXXXXXXX XXXXXX [STAMP]
Notary Public State of New York
No.------------
Qualified in New York County
Commission Expires 2/22/96
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OFFICER'S CERTIFICATE
Each of the undersigned, a Vice President and an Assistant Secretary,
respectively, of Alcan Aluminium Limited, a Canadian corporation (the
"Company"), does hereby certify as follows:
1. I am familiar with the Indenture dated as of May 15, 1983 between the
Company and Bankers Trust Company, as Trustee, as supplemented by the First
Supplemental Indenture dated as of January 1, 1986, the Second Supplemental
Indenture dated as of June 30, 1989, the Third Supplemental Indenture dated as
of July 19, 1989 and the Fourth Supplemental Indenture dated as of July 17, 1990
(such Indenture, as so supplemented, being referred to herein as the
"Indenture"), and have read Sections 8.1, 8.3, 8.4, 9.1, 9.3 and 11.5 thereof.
2. I have reviewed resolutions approved by the Board of Directors of the
Company at its October 27, 1994 meeting and the actions of officers of the
Company in executing and delivering the Fifth Supplemental Indenture dated as of
January 1, 1995 to the Indenture (the "Fifth Supplemental Indenture").
3. In my opinion, I have made such examinations or investigations as is
necessary to enable me to opine on the matter discussed in paragraph 4 below.
4. In my opinion, (i) the amalgamation of the Company and Alcan Aluminium
Holdings Limited, a wholly-owned subsidiary of the Company (the "Amalgamation"),
and the Fifth Supplemental Indenture comply with Article 9 of the Indenture, and
(ii) the conditions of the applicable provisions of the Indenture have been
complied with in connection with the Amalgamation and the execution and delivery
of the Fifth Supplemental Indenture.
IN WITNESS WHEREOF, each of the undersigned has executed this Certificate
this 1st day of January, 1995.
/s/ P.K. Pal
-------------------------------------
Name: P.K. Pal
Title: Vice President
/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
