EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE and AMENDMENT dated as
of March 2, 1994 to the Indenture (the "Indenture") dated as of
April 15, 1988, among CPC International Inc., a Delaware
corporation (the "Company"), and Bankers Trust Company, a New
York banking corporation, as Trustee (the "Trustee").
Capitalized terms used herein without definition have the
meanings assigned to them in the Indenture.
RECITALS
WHEREAS, Section 901(6) of the Indenture provides
that the parties thereto may enter into an indenture
supplemental to the Indenture without the consent of any
Holder the purpose of which is to change or eliminate any of
the provisions of the Indenture; provided that any such change
or elimination shall become effective only when there is no
Debt Security Outstanding created prior to the execution of
such supplemental indenture that is entitled to benefit of such
provision.
WHEREAS, as of the date hereof, there are no Debt
Securities of any series Outstanding.
WHEREAS, all conditions and requirements necessary to
make this supplemental indenture and amendment a valid
instrument that is legally binding on the parties hereto and
the Holder have been satisfied.
Accordingly, the parties hereto agree as follows:
1. Section 101 of the Indenture is herby amended by
inserting the following definitions in there appropriate place:
"'Common Depositary' has the meaning specified in
Section 304."
"'Exchange Date' has the meaning specified in Section
304."
2. Section 101 of the Indenture is hereby amended
by deleting from the definition of "Depositary" the following
phrase: "pursuant to Section 305(d)".
3. Section 101 of the Indenture is hereby amended
by deleting from the definition of "Global Security" the
following phrase: "and bearing the legend prescribed in
Section 303(c)".
4. Section 101 of the Indenture is hereby amended
by deleting therefrom the definition of "Security Register" and
"Security Registrar" and inserting in their place the
following:
"'Security Register' and 'Security Registrar' have
the respective meanings specified in Section 305."
5. Subclause (10) of Section 301 of the Indenture
is hereby amended by inserting after the phrase "the Depositary
for such Global Security or Securities" the following: ", any
legend to appear thereon".
6. Section 302 through and including Section 310 of
the Indenture are hereby amended in their entirety to read as
follows:
"SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section
301 with respect to the Debt Securities of any series, any
Registered Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof
and any Bearer Securities of such series shall be issuable
in the denomination of $5,000.
SECTION 303. Execution, Authentication,
Delivery and Dating.
The Debt Securities shall be executed on behalf of
the Company by its Chairman of the Board, President, any
Senior Vice President, the Comptroller or the Treasurer,
under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Debt Securities
may be manual or facsimile. Coupons shall bear the
facsimile signature of the Treasurer or any Assistant
Treasurer of the Company.
Debt Securities and coupons bearing the manual or
facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the execution,
authentication and delivery of such Debt Securities or did
not hold such offices at the date of such Debt Securities.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Debt Securities of any series, together with any coupons
appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order
for the authentication and delivery of such Debt
Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Debt Securities;
provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and
provided, further, that a Bearer Security may be delivered
in connection with its original issuance only if the
Person entitled to receive such Bearer Security shall have
furnished a certificate in the form set forth in Exhibit
A-1 to this Indenture, dated no earlier than 15 days prior
to the earlier of the date on which such Bearer Security
is delivered and the date on which any temporary global
Debt Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary
global Debt Security and this Indenture and no later than
the date on which such Bearer Security is delivered. If
any Debt Security shall be represented by a permanent
global Bearer Security, then, for purposes of this Section
and Section 304, the notation of a beneficial owner's
interest thereon upon original issuance of such Debt
Security or upon exchange of a portion of a temporary
global Debt Security shall be deemed to be delivery in
connection with its original issuance of such beneficial
owner's interest in such permanent global Debt Security.
Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been
detached and cancelled by the Trustee.
If the forms or terms of the Debt Securities of the
series and any related coupons have been established in or
pursuant to one or more Board Resolutions and set forth in
an Officers' Certificate as permitted by Sections 201 and
301, in authenticating such Debt Securities, and accepting
the additional responsibilities under this Indenture in
relation to such Debt Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the forms of such Debt Securities and
any coupons have been established by or pursuant to a
Board Resolution and as set forth in an Officers'
Certificate as permitted by Section 201, that such
forms have been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Debt Securities and
any coupons have been established by or pursuant to a
Board Resolution and as set forth in an Officers'
Certificate as permitted by Section 301, that such
terms have been established in conformity with the
provisions of this Indenture; and
(c) that such Debt Securities, together
with any coupons appertaining thereto, when
authenticated and delivered by the Trustee and issued
by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of
the Company, enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting the
enforcement of creditors' rights and to general
principles of equity.
If such forms or terms have been so established, the
Trustee shall not be required to authenticate such Debt
Securities if the issue of such Debt Securities pursuant
to this Indenture will affect the Trustee's own rights,
duties or immunities under the Debt Securities and this
Indenture or will otherwise affect the Trustee in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of
the two preceding paragraphs, if all Debt Securities of a
series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or
the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraphs at or prior
to the time of authentication of each Debt Security of
such series if such documents are delivered at or prior to
the authentication upon original issuance of the first
Debt Security of such series to be issued.
A Company Order delivered in the circumstances set
forth in the third preceding paragraph may provide that
Debt Securities which are the subject thereof will be
authenticated and delivered by the Trustee on original
issue from time to time upon the telephonic or written
order of persons designated in such Company Order
(telephonic instructions to be promptly confirmed in
writing by such persons) and that such persons are
authorized to determine, consistent with the Officers'
Certificate referred to in Section 301 or any applicable
supplemental indenture, such terms and conditions of said
Debt Securities as are specified in such Company Order,
provided the foregoing procedure is acceptable to the
Trustee.
Each Registered Security shall be dated the date of
its authentication. Each Bearer Security of a series
shall be dated as of the date of the initial issuance of
Debt Securities of such series.
No Debt Security or any related coupon shall be
entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such
Debt Security, or the Debt Security to which such coupon
appertains, a certificate of authentication substantially
in the form provided for herein executed by the Trustee by
manual signature, and such certificate upon any Debt
Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly
authenticated and delivered hereunder and that such Debt
Security and any related coupon are entitled to the
benefits of this Indenture.
SECTION 304. Temporary Debt Securities.
Pending the preparation of definitive Debt Securities
of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver,
temporary Debt Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the
definitive Debt 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 duly authorized officers executing
such Debt Securities may determine, as evidenced by their
execution of such Debt Securities. In the case of Debt
Securities of any series, such temporary Debt Securities
may be in global form, representing all or a portion of
the Outstanding Debt Securities of such series. A
temporary Bearer Security shall be delivered only in
compliance with the conditions set forth in Section 303.
Except in the case of temporary Bearer Securities in
global form (which shall be exchanged in accordance with
the provisions of the following paragraphs), if temporary
Debt Securities of any series are issued, the Company will
cause definitive Debt Securities of that series to be
prepared without unreasonable delay. After the
preparation of definitive Debt Securities of such series,
the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series
upon surrender of the temporary Debt Securities of such
series at the office or agency of the Company maintained
pursuant to Section 1002 in a Place of Payment for that
series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debt 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
Debt Securities of the same series and of like tenor of
authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange
for a temporary Registered Security; and provided,
further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only
in compliance with the conditions set forth in Section
303. Until so exchanged the temporary Debt Securities of
any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt
Securities of such series.
If temporary Bearer Securities of any series are
issued in global form, any such temporary global Debt
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 Debt 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 Bearer Security of a
series (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Debt Securities of such series in
aggregate principal amount equal to the principal amount
of such temporary global Bearer Security, executed by the
Company. On or after the Exchange Date, such temporary
global Bearer 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 Debt Securities of such series
without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary
global Bearer Security, a like aggregate principal amount
of definitive Debt Securities of the same series of
authorized denominations and of like tenor as the portion
of such temporary global Bearer Security to be exchanged;
provided, however, that, unless otherwise specified in
such temporary global Bearer Security, upon such
presentation by the Common Depositary, such temporary
global Bearer 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
Bearer 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 Bearer Security held for its account then
to be exchanged, each in the form set forth in Exhibit A-2
to this Indenture. To the extent required by applicable
United States Treasury regulations, in the case of a
Bearer Security, the Exchange Date shall not be later than
the expiration of a reasonable period after the expiration
of the 40-day period beginning on the date of issuance of
the temporary global Bearer Security to be exchanged. The
definitive Debt Securities to be delivered in exchange for
any such temporary global Bearer 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 Bearer Securities shall be delivered in
exchange for a portion of a temporary global Debt Security
only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global
Bearer Security, the interest of a beneficial owner of
Debt Securities of a series in a temporary global Bearer
Security shall be exchanged for definitive Debt Securities
of the same series and of like tenor following the
Exchange Date when the account holder instructs Euro-clear
or CEDEL S.A., as the case may be, to request such
exchange on his behalf and delivers to Euro-clear or CEDEL
S.A., as the case may be, a certificate in the form set
forth in Exhibit A-2 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 and each Paying
Agent. Unless otherwise specified in such temporary
global Bearer Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary
global Bearer Security, except that a Person receiving
definitive Debt 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 Debt Securities in person at the offices of
Euro-clear or CEDEL S.A. Definitive Securities in bearer
form to be delivered in exchange for any portion of a
temporary global Bearer Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the
temporary Debt Securities of any series shall in all
respects be entitled to the same benefits under this
Indenture as definitive Debt 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 Bearer
Security on an Interest Payment Date for Debt Securities
of such series occurring prior to the applicable Exchange
Date 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 A-3 to this Indenture,
for credit without further interest on or after such
Interest Payment Date to the respective accounts of the
Persons who are the beneficial owners of such temporary
global Debt 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 A-4 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.
SECTION 305. Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register
maintained in such office and in any other office or
agency to be maintained by the Company in accordance with
Section 1002 being herein sometimes collectively referred
to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The
Trustee is hereby appointed "Security Registrar" for the
purpose of registering Registered Securities and transfers
of Registered Securities as herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency
maintained pursuant to Section 1002 for such purpose in a
Place of Payment for that series, 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 denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Registered Securities of
any series may be exchanged for other Registered
Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and
tenor, upon surrender of the Debt Securities to be
exchanged at such office or agency. Bearer Securities may
not be issued in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any
series may be exchanged for Registered Securities of the
same series of any authorized denominations and of a like
aggregate principal amount and tenor, 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. If the Holder of
a Bearer Security is unable to produce any such unmatured
or matured coupon or coupons in default, such exchange may
be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company 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 or jointly by the
Company and the Trustee if there is furnished to them such
security and/or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the
Holder of such Debt 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 any such office or agency
in exchange for a Registered Security of the same series
and like tenor 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 proposed date for payment of
Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest
Payment Date or proposed date for payment, as the case may
be, and interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, 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.
Whenever any Debt Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the replacement Debt Securities
which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 301, any permanent
global Debt Security shall be exchangeable only as
provided in this paragraph. If the beneficial owners of
interests in a permanent global Debt Security are entitled
to exchange such interests for Debt Securities of such
series and of like tenor and principal amount of another
authorized form and denomination, as specified as
contemplated by Section 301, then without unnecessary
delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company
shall deliver to the Trustee definitive Debt Securities of
that series in aggregate principal amount equal to the
principal amount of such permanent global Debt Security,
executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent
global Debt Security shall be surrendered by the Common
Depositary or such other depositary as shall be specified
in the Company Order with respect thereto 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 Debt
Securities of the same series without charge and the
Trustee shall authenticate and deliver, in exchange for
each portion of such permanent global Debt Security, a
like aggregate principal amount of definitive Debt
Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent global
Debt Security to be exchanged which, unless the Debt
Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as specified as
contemplated by Section 301, shall be in the form of
Bearer Securities or Registered Securities, or any
combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Debt
Securities of that series to be redeemed and ending on the
relevant Redemption Date; and provided, further, that no
Bearer Security delivered in exchange for a portion of a
permanent global Debt Security (or, if specified as
contemplated by Section 301, in exchange for Registered
Securities) shall be mailed or otherwise delivered to any
location in the United States. Promptly following any
such exchange in part and any endorsement thereon to
reflect the amount represented by such exchange, such
permanent global Debt Security shall be returned by the
Trustee to the Common Depositary or such other depositary
or Common Depositary referred to above in accordance with
the written instructions of the Company referred to above.
If a Registered Security is issued in exchange for any
portion of a permanent global Debt Security after the
close of business at the office or agency where such
exchange occurs 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 proposed date for payment of
interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of such
Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may
be, only to the Person to whom interest in respect of such
portion of such permanent global Debt Security is payable
in accordance with the provisions of this Indenture.
All Debt Securities issued upon any registration of
transfer or exchange of Debt Securities shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the
Debt Securities surrendered upon such registration of
transfer or exchange.
Every Registered Security presented or surrendered
for registration of transfer or for exchange shall (if so
required by the Company or the Trustee or any transfer
agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the
Company, the Trustee and the Security Registrar or any
transfer agent duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration
of transfer or exchange of Debt Securities, but the
Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed
in connection with any registration of transfer or
exchange of Debt Securities, other than exchanges pursuant
to Sections 304, 907 or 1107 not involving any transfer.
The Company shall not be required (i) to issue,
register the transfer of or exchange Debt Securities of
any series during a period beginning at the opening of
business 15 days before any selection of Debt Securities
of that series to be redeemed and ending at the close of
business on (A) if Debt Securities of the series are
issuable only as Registered Securities, the day of the
mailing of the relevant notice of redemption, and (B) if
Debt Securities of the series are issuable as Bearer
Securities, the day of the first publication of the
relevant notice of redemption or, if Debt Securities of
the series are also issuable as Registered Securities and
there is no publication, the mailing of the relevant
notice of redemption, (ii) to register the transfer of or
exchange any Registered Security so selected for
redemption in whole or in part, except the unredeemed
portion of any Debt Security being redeemed in part, 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 and
like tenor; provided that such Registered Security shall
be simultaneously surrendered for redemption.
Nothwithstanding anything in this Indenture or in the
terms of a Debt Security to the contrary, the exchange of
Bearer Securities for Registered Securities will be
subject to satisfaction of the provisions of the United
States tax laws in effect at the time of the exchange.
Neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall be required to exchange any
Bearer Security for a Registered Security if (i) as a
result thereof and in the Company's judgment, the Company
would incur adverse consequences under then applicable
United States Federal income tax laws and (ii) in the case
of the Trustee or any agent of the Company or the Trustee,
the Company shall have delivered to such Person an
Officers' Certificate and an Opinion of Counsel as to the
matters set forth in clause (i) above.
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Debt Securities.
If any mutilated Debt Security or a Debt Security
with a mutilated coupon appertaining thereto is
surrendered to the Trustee, the Company shall execute, and
the Trustee shall authenticate and deliver in exchange
therefor, a new Debt Security of the same series and of
like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to the surrendered
Debt Security.
If there shall have been delivered to the Company and
the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Debt Security or coupon,
and (ii) such security or indemnity as may be required by
them in their absolute discretion, to save each of them
harmless, then, in the absence of notice to the Company or
the Trustee that such Debt Security or coupon has been
acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed,
lost or stolen Debt Security or in exchange for the Debt
Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Debt Security of the same series
and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Debt Security or to the Debt
Security to which such destroyed, lost or stolen coupon
appertains.
In case any such mutilated, destroyed, lost or stolen
Debt Security or coupon has become or is about to become
due and payable, the Company in its discretion may,
instead of issuing a new Debt Security, pay such Debt
Security or coupon; provided, however, that principal of
(and premium, if any) and interest, if any, 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,
unless otherwise specified as contemplated by Section 301
with respect to any series of Debt Securities, interest on
Bearer Securities (but not any additional amounts payable
as provided in Section 1005), shall be payable only upon
presentation and surrender of the coupons appertaining
thereto.
Upon the issuance of any new Debt Security under this
Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Debt Security of any series with its
coupons, if any, issued pursuant to this Section in lieu
of any destroyed, lost or stolen Debt Security, or in
exchange for a Debt Security to which a destroyed, lost or
stolen coupon appertains, shall constitute an original
additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Debt Security and its
coupons, if any, or the destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and any such
new Debt Security and coupons, if any, shall be entitled
to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities of
that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities or
coupons.
SECTION 307. Payment of Interest; Interest
Rights Preserved.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Debt Securities,
interest on any Registered Security which is payable, and
is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name
that Debt Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular
Record Date for such interest.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Debt Securities, any
interest due on Bearer Securities on or before the
Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest
installments as are evidenced thereby as they severally
mature.
Any interest on any Registered Security of any series
which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable
to the Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in
each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names
the Registered Securities of such series (or their
respective Predecessor Securities) are registered at
the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of
the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed
payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as provided in this clause.
Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and
not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the
Special Record Date therefor (i) to be mailed,
first-class postage prepaid, to each Holder of
Registered Securities of such series at his address
as it appears in the Security Register, not less than
10 days prior to such Special Record Date, and (ii)
with respect to Bearer Securities of such series, to
be published as provided for in Section 106. The
Trustee may, in addition, in its discretion, in the
name and at the expense of the Company, cause a
similar notice to be published at least once 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, New York, but such publication
shall not be a condition precedent to the
establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Registered
Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no
longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any
Defaulted Interest on the Registered Securities of
any series in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which such Debt Securities may be listed,
and upon such notice as may be required by such
exchange, if, after notice is given by the Company to
the Trustee of the proposed payment pursuant to this
clause, such manner or payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section
and Section 305, each Debt Security delivered under this
Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debt Security shall carry the
rights to interest accrued and unpaid, and to accrue,
which were carried by such other Debt Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person
in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any)
and (subject to Sections 305 and 307) interest, if any, on
such Debt Security and for all other purposes whatsoever,
whether or not payment on such Debt Security is overdue,
and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the
contrary.
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 payment on such Bearer Security
or coupon is overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Debt Securities and coupons surrendered for
payment, redemption, registration of transfer or exchange
or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be
delivered to the Trustee and such Debt Securities and
coupons shall be promptly cancelled and destroyed by the
Trustee. The Company may at any time deliver to the
Trustee for cancellation any Debt Securities previously
authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Debt
Securities so delivered shall be promptly cancelled and
destroyed by the Trustee. No Debt Securities shall be
authenticated in lieu of or in exchange for any Debt
Securities cancelled as provided in this Section, except
as expressly permitted by this Indenture. All cancelled
Debt Securities and coupons held by the Trustee shall be
destroyed by the Trustee and a certification of such
destruction shall be delivered to the Company unless other
instructions are furnished to the Trustee by a Company
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for the Debt Securities of any series,
interest, if any, on the Debt Securities of each series
shall be computed on the basis of a 360-day year of twelve
30-day months."
7. Subclauses (2) and (3) of Section 501 of the
Indenture are hereby amended in their entirety to read as
follows:
"(2) default in the payment of principal of (or premium,
if any, on) any Debt Security of any such series when it
becomes due and payable, and continuance of such default
for a period of three days; or
(3) default in the deposit of any sinking fund payment
when and as due by the terms of a Debt Security of such
series, and continuance of such default for a period of
three days; or"
8. Exhibit A of the Indenture is hereby amended in
its entirety to read as follows:
"EXHIBIT A-1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
[Whenever any provision of this Indenture or the
forms of Debt Security contemplates that certification be
given by a Person entitled to receive a Bearer Security,
such certification shall be provided substantially in the
form of the following certificate, with only such changes
as shall be approved by the Company:]
CERTIFICATE
.............
[Insert title or sufficient description
of Debt Securities to be delivered]
[This is to certify that as of the date hereof, and
except as set forth below, the above-captioned Debt
Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or
other entities created or organized in or under the laws
of the United States or any political subdivision thereof,
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 (financial
institutions as defined in United States Treasury
Regulations section 1.165-12(c)(1)(v), are herein referred
to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who
acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt
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 CPC International Inc. 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 institution(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, 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 Debt 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" including 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
if the above statement as to beneficial ownership is not
correct on the date of delivery of the above-captioned
Debt Securities in bearer form as to all of such Debt
Securities.
If the undersigned is a dealer, the undersigned
agrees to obtain a similar certificate from each person
entitled to delivery of any of the above-captioned Debt
Securities in bearer form purchased from it; provided,
however, that, if the undersigned has actual knowledge (as
defined in applicable Internal Revenue Service
regulations) that the information contained in such a
certificate is false, the undersigned will not deliver a
Debt Security in temporary or definitive bearer form to a
person who signed such certificate notwithstanding the
delivery of such certificate to the undersigned.
This certificate excepts and does not relate to
$________ of such interest in the above-captioned Debt
Securities in respect of which we are not able to certify
and as to which we understand an exchange for and delivery
of definitive Debt Securities (or, if relevant, collection
of any payment) cannot be made until we do so certify.
We understand that this certificate may be required
in connection with certain tax laws of 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 no earlier
than the 15th day prior
to the Exchange Date or
prior to the date of the
[ ] certificate, if later]
[Name of Person Making Certification]
_____________________________________
(Authorized Signatory)
Name:
Title:
Exhibit A-2
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
OR CEDEL S.A.
IN CONNECTION WITH THE EXCHANGE OF A PORTION
OF A TEMPORARY GLOBAL SECURITY
Whenever any provision of this Indenture or the forms
of Debt Security contemplates that certification be given
by Euro-clear or CEDEL S.A. in connection with the
exchange of a portion of a temporary global Debt Security,
such certification shall be provided substantially in the
form of the following certificate, with only such changes
as shall be approved by the Company:]
CERTIFICATE
.............
[Insert title or sufficient description
of Debt 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 at Maturity set forth
below (our "Member Organizations") substantially in the
form attached hereto, as of the date hereof $__________
Principal Amount at Maturity of the above-captioned Debt
Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships,
domestic corporations or other entities created or
organized in or under the laws of the United States or any
political subdivision thereof, 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 (financial institutions, as defined in U.S.
Treasury Regulations section 1.165-12(c)(1)(v), are herein
referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States
person(s) who acquired the Debt Securities through foreign
branches of United States financial institutions and who
hold the Debt Securities through such United States
financial institutions on the date hereof (and in either
case (a) or (b), each such financial institution has
agreed on its own behalf or through its agent that we may
advise CPC International Inc. 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
institution(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) or (ii)) have certified that they have not
acquired the Debt Securities for purposes or 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" including 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 amounts) any portion of the temporary
global Debt Security representing the above-captioned Debt
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 amounts) 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 laws of 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__
[Certification may be dated
no earlier than the Exchange
Date.]
[ , as
Operator of the Euro-clear system]
[CEDEL S.A.]
By____________________________________
Exhibit A-3
[FORM OF CERTIFICATE TO BE GIVEN BY
EURO-CLEAR AND CEDEL S.A.
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
Whenever any provision of this Indenture or the forms
of Debt Security contemplates that certification be given
by Euro-clear or CEDEL S.A. to obtain interest prior to an
Exchange Date, such certification shall be provided
substantially in the form of the following certificate,
with only such changes as shall be approved by the
Company:]
CERTIFICATE
_______________________
[Insert title or sufficient description of Debt
Securities]
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 at Maturity set forth
below (our "Member Organizations") substantially in the
form attached hereto, as of the date hereof $__________
Principal Amount at Maturity of the above-captioned Debt
Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships,
domestic corporations or other entities created or
organized in or under the laws of the United States or any
political subdivision thereof, 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 (financial institutions, as defined in U.S.
Treasury Regulations section 1.165-12(c)(1)(v), are herein
referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States
person(s) who acquired the Debt Securities through foreign
branches of United States financial institutions and who
hold the Debt Securities through such United States
financial institutions on the date hereof (and in either
case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we
may advise CPC International Inc. 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
institution(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) or (ii)) have certified that they have not
acquired the Debt 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 understand that this certification is required in
connection with certain tax laws of 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.
We undertake that any interest received by us and not
paid to a person described in clauses (i) through (iii)
above shall be returned to the Trustee for the above Debt
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: _______________
[To be dated on or after
the relevant Interest
Payment Date]
[ ,
as Operator of the Euro-clear
System]
[CEDEL S.A.]
By: ____________________________
Exhibit A-4
[FORM OF CERTIFICATION BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
Whenever any provision of this Indenture or the forms
of Debt Security contemplates that certification be given
by a Person who beneficially owns any [Bearer] Security in
connection with obtaining any interest prior to an
Exchange Date relating to such Bearer Security, such
certification shall be provided substantially in the form
of the following certificate, with only such changes as
shall be approved by the Company:]
CERTIFICATE
_______________________
[Insert title or sufficient description of Debt
Securities]
This is to certify that as of the date hereof, and
except as set forth below, the above-captioned Debt
Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or
other entities created or organized in or under the laws
of the United States or any political subdivision thereof,
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 (financial
institutions, as defined in United States Treasury
Regulations section 1.165-12(c)(1)(v), are herein referred
to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who
acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt
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 CPC International Inc. 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 institution(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, 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 Debt 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 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); and
its "possessions" including Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
This certificate excepts and does not relate to [U.S.
$__________] principal amount of the above-captioned Debt
Securities appearing in your books as being held for our
account as to which we were not yet able to certify and as
to which we understand interest cannot be credited unless
and until we are able so to certify.
We understand that this certificate may be required
in connection with certain securities and 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: _______________
[To be dated on or after
the relevant Payment Date]
[Name of Person Entitled to
Receive Interest]
_________________________________
(Authorized Signatory)
Name:
Title:"
9. Except to the extent expressly amended hereby,
the Indenture and the Debt Securities remain in full force and
effect. After the execution of this supplemental indenture and
amendment, any reference to the Indenture means the Indenture
as amended hereby.
10. The laws of the State of New York shall govern
this supplemental indenture and amendment without regard to
principles of conflicts of laws. The parties may sign any
number of copies of this supplemental indenture and amendment.
One signed copy is enough to prove this supplemental indenture
and amendment.
11. In case any provision of this supplemental
indenture and amendment shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or
impaired thereby.
12. The captions of this supplemental indenture and
amendment are for convenience only and shall not affect the
construction thereof.
13. The recitals contained herein shall be taken as
the statements of the Company and the Trustee assumes no
responsibility for their correctness.
14. The Trustee makes no representation as to the
validity or sufficiency of this supplemental indenture and
amendment.
IN WITNESS WHEREOF, the parties hereto have caused
this supplemental indenture and amendment to be duly executed
under seal all as of the date first above written.
SIGNATURES
CPC International Inc.
By: /s/ Xxxxxx X.Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Vice President and Treasurer
Attest: /s/ Xxxxx X. Xxxxxx
--------------------
Xxxxx X. Xxxxxx
Assistant Secretary
Bankers Trust Company,
as Trustee
By: /s/ Xxxxx Xxxxxxx
------------------------
Xxxxx Xxxxxxx
Assistant Vice President
Attest: /s/ Xxxxxxx Xxxxxxxx
