Exhibit 10
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DOW XXXXX & COMPANY, INC.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
as Trustee
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Second Supplemental Indenture
Dated as of December 1, 1995
To the Indenture
Dated as of October 1, 1985
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SECOND SUPPLEMENTAL INDENTURE, dated as of December 1, 1995, between
DOW XXXXX & COMPANY, INC., a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), having its principal office at
000 Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and FIRST
TRUST OF NEW YORK, NATIONAL ASSOCIATION, a national banking association existing
under the laws of the United States, as Trustee under the Indenture referred to
below (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK (the "Predecessor Trustee") an Indenture,
dated as of October 1, 1985, between the Company and the Predecessor Trustee, as
supplemented by the First Supplemental Indenture, dated as of November 15, 1989,
between the Company and the Predecessor Trustee (collectively, the "Indenture"),
pursuant to which one or more series of unsecured debentures, notes or other
evidences of indebtedness of the Company (herein and therein called the
"Securities") may be issued from time to time; all capitalized terms used and
not defined herein shall have the respective meanings assigned to them in the
Indenture;
WHEREAS, the Trustee is the successor to the Predecessor Trustee under
the Indenture;
WHEREAS, Section 901(9) of the Indenture provides that without the
consent of any Holders, 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 to cure any ambiguity, to correct or supplement
any provision therein which may be inconsistent with any other provision
therein, or to make any other provisions with respect to matters or questions
arising under the Indenture, provided such action shall 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, proposes 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.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, with respect to Securities of any series issued after the date hereof
as follows:
SECTION 1.1. Section 101 of the Indenture is amended to include
therein the following definitions:
"'Depositary' means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, that is designated to act as Depositary for such Securities as
contemplated by Section 301."
and
"'Global Security' means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or
such legend as may be specified as contemplated by Section 301 for such
Securities)."
SECTION 2.1. Section 104 of the Indenture is amended by deleting
existing clause (d) thereof and adding new clauses (d) through (h) at the end
thereof, to read in their entirety as follows:
"(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to
be given, made or taken by Holders of Securities of such series, provided
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that the Company may not set a record date
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for, and the provisions of this paragraph shall not apply with respect to,
the giving or making of any notice, declaration, request or direction
referred to in the next paragraph. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of the relevant
series on such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder
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unless taken on or prior to the applicable Expiration Date by Holders of
the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent
the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon
the record date previously set shall automatically and with no action by
any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the relevant series
on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
(f) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration referred to in Xxxxxxx 000, (xxx) any request
to institute proceedings referred to in Section 507(2) or (iv) any
direction referred to in Section 512, in each case with respect to
Securities of such series. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of such series on such
record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall
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be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new
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record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount
of Outstanding Securities of the relevant series on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph,
the Trustee, at the Company's expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to
be given to the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 106.
(g) With respect to any record date set pursuant to this Section, the
party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to
any earlier or later day; provided that no such change shall be effective
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unless notice of the proposed new Expiration Date is given to the other
party hereto in writing, and to each Holder of Securities of the relevant
series in the manner set forth in Section 106, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to
any record date set pursuant to this Section, the party hereto which set
such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the
180th day after the applicable record date.
(h) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such principal amount."
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SECTION 3.1. Section 204 of the Indenture is renumbered Section 205
and a new Section 204 is hereby added, to read in its entirety as follows:
"SECTION 204. Form of Legend for Global Securities.
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Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following
form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR
A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE."
SECTION 4.1. Section 301 of the Indenture is hereby amended by
renumbering former clauses (12) through (15) as (13) through (16), and a new
clause (12) is added, to read in its entirety as follows:
"(12) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 204 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of
the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer
of such Global Security in whole or in part may be registered, in the name
or names of Persons other than the Depositary for such Global Security or a
nominee thereof;"
SECTION 5.1. Section 305 of the Indenture is amended by adding the
following paragraph to the end thereof:
"The provisions of Clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
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(1) Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (ii) has ceased
to be a clearing agency registered under the Exchange Act, (B) there
shall have occurred and be continuing an Event of Default with respect
to such Global Security or (C) there shall exist such circumstances,
if any, in addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(4) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Section, Section 304,
306, 906 or 1107 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such
Global Security or a nominee thereof."
SECTION 6.1. All the 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 and amended by this Second Supplemental
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Indenture, shall be read, taken and construed as one and the same instrument.
SECTION 6.2. The provisions and benefit of this Second Supplemental
Indenture shall not be effective with respect to Securities Outstanding prior to
the execution hereof.
SECTION 6.3. This Second Supplemental Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 6.4. If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this Second
Supplemental Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control.
SECTION 6.5. All covenants and agreements in this Second Supplemental
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 6.6. In case any provision in this Second Supplemental
Indenture 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.
SECTION 6.7. Nothing in this Second Supplemental Indenture, express
or implied, shall give to any person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Second Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
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.
DOW XXXXX & COMPANY, INC.
By:_______________________________
Title:
[CORPORATE SEAL]
Attest:
__________________________
Title:
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Title:
[CORPORATE SEAL]
Attest:
___________________________
Title:
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STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ___ day of December, 1995, before me personally came
__________________, to me known, who, being by me duly sworn, did dispose and
say that he is ______________ of Dow Xxxxx & Company, Inc., 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 NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On the ___ day of December, 1995, before me personally came
____________________, me known, who, being by me duly sworn, did dispose and say
that he is a _______________ of First Trust of New York, National Association,
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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