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EXHIBIT 4.1
XXXX ELSEVIER CAPITAL INC.,
AS ISSUER,
AND
XXXX INTERNATIONAL P.L.C. AND
ELSEVIER NV,
AS GUARANTORS,
THE CHASE MANHATTAN BANK,
AS TRUSTEE,
THE CHASE MANHATTAN BANK, LONDON BRANCH
AS LONDON PAYING AGENT, AND
CHASE MANHATTAN BANK LUXEMBOURG S.A.
AS LUXEMBOURG PAYING AGENT
FOURTH SUPPLEMENTAL INDENTURE
DATED AS OF JULY , 2001
TO
INDENTURE
DATED AS OF MAY 9, 1995
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GUARANTEED DEBT SECURITIES
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FOURTH SUPPLEMENTAL INDENTURE, dated as of July , 2001 ("Fourth
Supplemental Indenture"), among Xxxx Elsevier Capital Inc., a corporation
incorporated under the laws of the State of Delaware, as issuer (the "Issuer"),
each of Xxxx International P.L.C., a public limited company incorporated in
England, and Elsevier NV, a public company with limited liability incorporated
under the laws of The Netherlands, as guarantors (each individually, a
"Guarantor" and collectively, the "Guarantors"), The Chase Manhattan Bank, as
trustee (the "Trustee"), The Chase Manhattan Bank, London Branch, as London
Paying Agent and Chase Manhattan Bank Luxembourg S.A., as Luxembourg Paying
Agent.
RECITALS
WHEREAS, the Issuer, the Guarantors and the Trustee entered into an
indenture, dated as of May 9, 1995 (as amended and supplemented, the
"Indenture"; terms not defined herein are used with the meanings ascribed to
them in the Indenture) providing for the issuance from time to time of the
Issuer's Debt Securities, to be issued in one or more series as provided in the
Indenture;
WHEREAS, there are presently issued and outstanding under the Indenture
$150,000,000 principal amount of 7% Notes due May 15, 2005 and $150,000,000
principal amount of 7.5% Notes due May 15, 2025, each outstanding series being
guaranteed, jointly and severally, by the Guarantors, and the Trustee has been
appointed as trustee for each outstanding series;
WHEREAS, Section 901(8) of the Indenture provides that, without the consent
of any Holders of Debt Securities, the Issuer and each Guarantor, when
authorized by a Board Resolution, and the Trustee for the Debt Securities, at
any time and from time to time, may enter into one or more indentures
supplemental to the Indenture in form satisfactory to such Trustee to add to the
conditions, limitations and restrictions on the form, terms or purposes of a
series of Debt Securities;
WHEREAS, the Issuer and each Guarantor desires to appoint The Chase
Manhattan Bank, London Branch as London Paying Agent hereunder and Chase
Manhattan Bank Luxembourg S.A. as Luxembourg Paying Agent hereunder and The
Chase Manhattan Bank, London Branch and Chase Manhattan Bank Luxembourg S.A.
desire to accept such appointment on the terms and conditions set forth herein;
WHEREAS, the Issuer and each Guarantor have each been authorized by a duly
adopted Board Resolution to enter into this Fourth Supplemental Indenture;
WHEREAS, the Issuer and each Guarantor have delivered to the Trustee such
certificates or opinions as may be required and requested pursuant to the
Indenture; and
WHEREAS, all things necessary to make this Fourth Supplemental Indenture a
valid agreement of the Issuer and each Guarantor in accordance with its terms
have been done and performed.
NOW THEREFORE, in consideration of the promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Issuer, each Guarantor and the Trustee hereby mutually
covenant and agree for the equal and proportionate benefit of all Holders of the
Debt Securities originally issued after the date hereof, as follows:
1. Amendment of Section 101.
a. The following definitions are hereby added in appropriate alphabetical
sequence:
"Component Currency" shall mean any currency which is a component
currency of any currency unit.
"Conversion Event" means the unavailability of any Foreign Currency or
currency unit due to the imposition of exchange controls or other
circumstances beyond the Issuer's control in each case as determined in
good faith by the Issuer.
"Currency Determination Agent", with respect to Debt Securities of any
series, means, a Person designated pursuant to a Board Resolution or an
Officers' Certificate.
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"Foreign Currency" means a currency issued and actively maintained as
a country's recognized unit of domestic exchange by the government of any
country other than the United States and such term shall include the euro.
"Judgment Date" has the meaning specified in Section 516.
"London Paying Agent" means The Chase Manhattan Bank, London Branch or
any other Person authorized by the Issuer to serve as London Paying Agent
and to pay the principal of (and premium, if any) or interest, if any, on
any Debt Securities of any series denominated in a Foreign Currency on
behalf of the Issuer.
"Luxembourg Paying Agent" means Chase Manhattan Bank Luxembourg S.A.
or any other Person authorized by the Issuer to serve as Luxembourg Paying
Agent so long as any Debt Securities of any series are listed on the
Luxembourg Stock Exchange and to pay the principal of (and premium, if any)
or interest, if any, on any Debt Securities of any series in definitive
form in accordance with the terms hereof.
"Market Exchange Rate" with respect to any Foreign Currency or
currency unit on any date means, unless otherwise specified in accordance
with Section 301, the noon buying rate in The City of New York for cable
transfers in such Foreign Currency or currency unit as certified for
customs purposes by the Federal Reserve Bank of New York for such Foreign
Currency or currency unit.
"Place of Payment", when used with respect to the Debt Securities of
any particular series, means the place or places where the principal of
(and premium, if any) and interest, if any, on the Securities of that
series are payable, as contemplated by Section 301.
"Principal Financial Center" means, unless otherwise specified in
accordance with Section 301, the capital city of the country issuing the
Foreign Currency or currency unit, except that with respect to Dollars,
Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders, South
African rand and Swiss francs, the "Principal Financial Center" will be The
City of New York, Sydney and Xxxxxxxxx, Xxxxxxx, Xxxxxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxx and Zurich, respectively.
"Substitute Date" has the meaning specified in Section 516.
b. Section 101 is hereby amended and supplemented by deleting the
definition of "Business Day" and "Depositary" contained therein and replacing
each such definition with the following corresponding definition:
"Business Day" shall mean any day, other than a Saturday or Sunday or
a day on which commercial banks are authorized or required by law,
regulation or executive order to close in The City of New York; provided,
however, that, with respect to Debt Securities not denominated in Dollars,
the day is not (i) a day on which commercial banks are authorized or
required by law, regulation or executive order to close in London or (ii) a
day on which commercial banks are authorized or required by law, regulation
or executive order to close in the Principal Financial Center of the
country issuing the Foreign Currency or currency unit or, if the Foreign
Currency or currency unit is euro, a day on which the Trans-European
Automated Real-time Gross Settlement Express Transfer (TARGET) System is
closed.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in the form of a Global Security, the Person designated
as Depositary by the Issuer pursuant to Section 301 (which may include a
common depositary of Debt Securities on behalf of Clearstream Banking,
societe anonyme, Luxembourg or Euroclear Bank S.A./N.V., each in its
capacity as Depositary) until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that
series, provided, that nothing herein shall prevent a series of Debt
Securities from having more than one Depositary.
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c. Section 101 is hereby amended and supplemented by deleting the
definition of "U.S. Government Obligations" contained therein and replacing such
definition with the following definition:
"Government Obligations" means securities which are (i) direct
obligations (or certificates representing an ownership interest in such
obligation) of the government which issued the currency in which the Debt
Securities of a particular series are payable (except as provided in
Section 313(b), in which case with respect to Debt Securities for which a
Conversion Event has occurred as provided in Section 313(b), such
obligations shall be issued in the currency or currency unit in which such
Debt Securities are payable as a result of such Conversion Event) or (ii)
obligations of a Person controlled or supervised by or acting as an agency
or instrumentality of the government which issued the currency in which the
Debt Securities of such series are payable (except as provided in Section
313(b), in which case with respect to Debt Securities for which a
Conversion Event has occurred as provided in Section 313(b), such
obligations shall be issued in the currency or currency unit in which such
Debt Securities are payable as a result of such Conversion Event), the
payment of which is unconditionally guaranteed by such government, which,
in either case, are full faith and credit obligations of such government
payable in such currency and are not callable or redeemable at the option
of the Issuer or either Guarantor thereof.
2. Amendment of Section 301.
a. Section 301 is amended by adding the following language to the end of
subsection (8) thereof:
"and the particular provisions applicable thereto, in accordance with,
in addition to or in lieu of the provisions of Section 313"
b. Section 301 is amended and supplemented by deleting the word "and" at
the end of subsection (19), inserting the following subsections (20), (21) and
(22) after subsection (19) thereof and renumbering subsection (20) as subsection
(23):
(20) if other than Dollars, provisions, if any, for the Debt
Securities of the series to be denominated, and payments thereon to be
made, in Foreign Currencies and specifying the manner and place of payment
thereon and any other terms with respect thereto and, if other than as
provided herein, the manner of determining the equivalent thereof in
Dollars for purposes of the definition of "Outstanding" in Section 101;
(21) if other than the coin or currency in which the Debt Securities
of that series are denominated, the coin or currency in which payment of
the principal of (and premium, if any) or interest, if any, on the Debt
Securities of such series shall be payable, and the time and manner of
determining the exchange rate between the currency or currency unit in
which such Debt Securities are denominated or stated to be payable and the
currency or currency unit in which such Debt Securities are to be so
payable;
(22) the designation of the original Currency Determination Agent, if
any; and"
3. Amendment of Section 303. Section 303 is amended and supplemented by
deleting the existing ninth paragraph and replacing it with the following:
"Each Depositary designated pursuant to Section 301 for a Global
Security (other than a common depositary of Debt Securities on behalf of
Clearstream Banking, societe anonyme, Luxembourg or Euroclear Bank
S.A./N.V.) must at the time of its designation and at all times while it
serves as such Depositary be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation."
4. Amendment of Section 307. Section 307 is amended and supplemented by
adding the following paragraphs at the end thereof:
"Notwithstanding anything to the contrary herein, a Holder of
$1,000,000 or more in aggregate principal amount of Debt Securities of any
series of Global Securities (or its equivalent in a Foreign Currency, if
such Debt Securities are denominated in a Foreign Currency), whether having
identical or different terms and provisions, having the same interest
payment dates will be entitled to receive interest payments, other than at
Maturity, by wire transfer of immediately available funds if appropriate
wire
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transfer instructions have been received in writing by the Trustee for the
Debt Securities of such series at least 15 days prior to the applicable
interest payment date. In addition to the foregoing, a Holder of $1,000,000
or more in aggregate principal amount of Debt Securities of any series of
Global Securities (or its equivalent in a Foreign Currency, if such Debt
Securities are denominated in a Foreign Currency), whether having identical
or different terms and provisions, having the same Maturity will be
entitled to receive payment at Maturity by wire transfer of immediately
available funds if appropriate wire transfer instructions have been
received in writing by the Trustee for the Debt Securities of such series
at least 15 days prior to Maturity; provided; however, that such payments
shall be made subject to applicable laws and regulations; provided; further
that the Issuer and Guarantors shall satisfy their obligations pursuant to
this Section 307 by paying to the Depositary, or its nominee, as the case
may be, such interest payments or payment at maturity by wire transfer of
immediately available funds. Any wire instructions received by the Trustee
for the Debt Securities of such series shall remain in effect until revoked
in writing by the Holder."
5. Amendment of Article Three. Article Three is amended and supplemented
by adding the following Sections 313 and 314 at the end thereof:
"Section 313. Payments on Debt Securities denominated in a Foreign
Currency.
Unless otherwise specified in accordance with Section 301 with respect
to any series of Debt Securities, the following provisions shall apply:
a. Except as set forth below, the principal of, premium, if any,
and interest on Debt Securities of any series will be payable by the
Issuer and the Guarantors, as the case may be, in the currency or
currency unit in which the Debt Securities of such series are
denominated.
b. If a Conversion Event occurs with respect to a Foreign Currency
or currency unit in which Debt Securities of any series are payable,
then with respect to each date for the payment of principal of, premium,
if any, and interest on the Debt Securities of that series occurring
after the last date on which such Foreign Currency or currency unit was
used, the Issuer and the Guarantors, as the case may be, may make such
payment in Dollars. The Dollar amount to be paid by the Issuer and the
Guarantors, as the case may be, to the Trustee for the Debt Securities
of such series and by such Trustee or any Paying Agent for the Debt
Securities of such series to the Holders of such Debt Securities with
respect to such payment date shall be determined by the Currency
Determination Agent on the basis of the Market Exchange Rate as of the
second Business Day preceding the applicable payment date or, if such
Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate, or as otherwise established
pursuant to Section 301 with respect to such series of Debt Securities.
Any payment in respect of such Debt Security made under such
circumstances in Dollars will not constitute an Event of Default
hereunder.
c. Notwithstanding any other provisions of this Section 313, the
following shall apply: (i) if the official unit of any Component
Currency is altered by way of combination or subdivision, the number of
units of that currency as a component shall be divided or multiplied in
the same proportion, (ii) if two or more Component Currencies are
consolidated into a single currency, the amounts of those currencies as
components shall be replaced by an amount in such single currency equal
to the sum of the amounts of the consolidated Component Currencies
expressed in such a single currency, (iii) if any Component Currency is
divided into two or more currencies, the amount of that original
Component Currency as a component shall be replaced by the amounts of
such two or more currencies having an aggregate value on the date of
division equal to the amount of the former Component Currency
immediately before such division and (iv) in the event of an official
redenomination of any currency (including, without limitation, a
currency unit), the obligations of the Issuer and Guarantors to make
payments in or with reference to such currency on the Debt Securities of
any series shall, in all cases, be deemed immediately following such
redenomination to be obligations to make payments in or with reference
to that amount of redenominated currency representing the amount of such
currency immediately before such redenomination.
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d. All determinations referred to in this Section 313 made by the
Currency Determination Agent shall be in its sole discretion and shall,
in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Holders of the applicable Debt Securities.
The Currency Determination Agent shall promptly give written notice to
the Trustee for the Securities of such series of any such decision or
determination.
e. The Trustee for the Debt Securities of a particular series shall
be fully justified and protected in relying and acting upon information
received by it from the Issuer, any Guarantor or the Currency
Determination Agent with respect to any of the matters addressed in or
contemplated by this Section 313 and shall not otherwise have any duty
or obligation to determine such information independently.
Section 314. No Commingling of Funds; Determining Principal Amount.
Subject to Section 313, each reference to any currency or currency
unit in any Debt Security, or in the Board Resolution or Officers'
Certificate or supplemental indenture relating thereto, shall mean only the
referenced currency or currency unit and no other currency or currency
unit.
The Trustee and each Paying Agent shall segregate moneys, funds and
accounts held by the Trustee and such Paying Agent in one currency or
currency unit from any moneys, funds or accounts held in any other
currencies or currency units, notwithstanding any provision herein which
would otherwise permit the Trustee or any Paying Agent to commingle such
amounts.
Whenever any action or act is to be taken hereunder by the Holders of
Debt Securities denominated in a Foreign Currency or currency unit, then
for purposes of determining the principal amount of Debt Securities held by
such Holders, the aggregate principal amount of the Debt Securities
denominated in a Foreign Currency or currency unit shall be deemed to be
that amount of Dollars that could be obtained for such principal amount on
the basis of a spot rate of exchange specified to the Trustee for such
series in an Officers' Certificate for such Foreign Currency or currency
unit into Dollars as of the date the taking of such action or act by the
Holders of the requisite percentage in principal amount of the Debt
Securities is evidenced to such Trustee."
6. Amendment of Article Four.
a. Section 401(a)(1) is amended and supplemented by deleting the existing
Section 401(a)(1) thereof and replacing it with the following Section 401(a)(1):
"(a) The Issuer shall be deemed to have satisfied and discharged the
entire indebtedness on all the Debt Securities of any particular series
and, so long as no Event of Default shall be continuing, the Trustee for
the Debt Securities of such series, upon Issuer Request and at the expense
of the Issuer, shall execute proper instruments acknowledging satisfaction
and discharge of such indebtedness, when:
(1) either:
(A) the Trustee shall have received written notice from the
Principal Paying Agent for the Debt Securities of a particular series
that all Debt Securities of such series theretofore authenticated and
delivered (other than (i) any Debt Securities of such series which
have been mutilated, destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Debt Securities
of such series for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as provided in
the last paragraph of Section 1003) have been delivered to the
Principal Paying Agent for the Debt Securities of such series for
cancellation; or
(B) except as otherwise specified with respect to the Debt
Securities of such series pursuant to Section 301, with respect to
all Outstanding Debt Securities of such series
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described in (A) above not theretofore so delivered to the Principal
Paying Agent for the Debt Securities of such series for cancellation:
(i) the Issuer has deposited, or caused to be deposited,
with the Trustee for the Debt Securities of such series in trust
an amount in the currency or currency unit in which the Debt
Securities of such series are payable (except as provided in
Section 313, in which case, the deposit to be made with respect
to Debt Securities for which a Conversion Event has occurred
shall be made in the currency or currency unit in which such Debt
Securities are payable as a result of such Conversion Event)
sufficient (without consideration of any reinvestment thereof) to
pay and discharge the entire indebtedness on all such Outstanding
Debt Securities of such series for unpaid principal (and premium,
if any) and interest, if any, to the Stated Maturity or any
Redemption Date as contemplated by Section 402, as the case may
be; or
(ii) the Issuer has deposited, or caused to be deposited,
with such Trustee as obligations in trust such amount of
Government Obligations as will, as evidenced by a Certificate of
a Firm of Independent Public Accountants delivered to such
Trustee, together with the predetermined and certain income to
accrue thereon (without consideration of any reinvestment
thereof), be sufficient to pay and discharge when due the entire
indebtedness on all such Outstanding Debt Securities of such
series for unpaid principal (and premium, if any) and interest,
if any, to the Stated Maturity or any Redemption Date as
contemplated by Section 402, as the case may be; or
(iii) the Issuer has deposited, or caused to be deposited,
with such Trustee in trust an amount equal to the amount referred
to in clause (i) or (ii) in any combination of the currency or
currency unit in which the Debt Securities of such series are
payable or Government Obligations and has delivered a Certificate
of a Firm of Independent Public Accountants delivered to such
Trustee verifying that such combination of funds and Government
Obligations will be sufficient to pay and discharge the entire
indebtedness on all Outstanding Debt Securities of such series
for unpaid principal (and premium, if any) and interest, if any,
to the Stated Maturity or any Redemption Date as contemplated by
Section 402, as the case may be, taking into account the
predetermined and certain income to accrue on such Government
Obligations (but without any consideration of any reinvestment
thereof) and without taking consideration of any reinvestment of
any such funds;"
b. Section 402 is amended and supplemented by deleting the existing
Section 402 thereof and replacing it with the following Section 402:
"Section 402. Application of Trust Money.
(a) All currency and currency units and obligations deposited with
the Trustee for any series of Debt Securities pursuant to Section 401
shall be held irrevocably in trust and shall be made under the terms of
an escrow trust agreement in form satisfactory to such Trustee. Such
currency and currency units and obligations shall be applied by such
Trustee, in accordance with the provisions of the Debt Securities, this
Indenture and such escrow trust agreement, to the payment, either
directly or through any Paying Agent (including the Issuer or either
Guarantor acting as its own Paying Agent) as such Trustee may determine,
to the Persons entitled thereto, of the principal of (and premium, if
any, on) and interest, if any, on the Debt Securities for the payment of
which such currency and currency units and obligations have been
deposited with such Trustee. If Debt Securities of any series are to be
redeemed prior to their Stated Maturity, whether pursuant to any
optional redemption provisions or in accordance with any mandatory
sinking fund requirement, the Issuer shall make such arrangements as are
satisfactory to the Trustee for any series of Debt Securities for the
giving of notice of redemption by such Trustee in the name, and at the
expense, of the Issuer.
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(b) The Issuer shall pay and shall indemnify the Trustee for any
series of Debt Securities against any tax, fee or other charge imposed
on or assessed against Government Obligations deposited pursuant to
Section 401 or the interest and principal received in respect of such
Government Obligations other than any such tax, fee or other charge
which by law is payable by or on behalf of Holders. The obligation of
the Issuer under this Section 402(b) shall be deemed to be an obligation
of the Issuer under Section 607(2).
(c) Anything in this Article Four to the contrary notwithstanding,
the Trustee for any series of Debt Securities shall deliver or pay to
the Issuer from time to time upon Issuer Request any currency and
currency units or Government Obligations held by it as provided in
Section 401 which, as expressed in a Certificate of a Firm of
Independent Public Accountants delivered to such Trustee, are in excess
of the amount thereof which would then have been required to be
deposited for the purpose for which such currency and currency units or
Government Obligations were deposited or received provided such delivery
can be made without liquidating any Government Obligations."
c. Section 404 is amended and supplemented by deleting the existing
Section 404 thereof and replacing it with the following Section 404:
"Section 404. Reinstatement.
If the Trustee for any series of Debt Securities is unable to apply
any of the currency and currency units (for purposes of this Section
404, "Amounts") or Government Obligations, as the case may be, described
in Section 401(a)(1)(B)(i) or (ii), respectively, in accordance with the
provisions of Section 401 by reason of any legal proceeding or any order
or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Issuer's and
each Guarantor's obligations under this Indenture and the Debt
Securities of such series and the related Guarantees shall be revived
and reinstated as though no deposit had occurred pursuant to Section 401
until such time as the Trustee for such series is permitted to apply all
such Amounts or Governmental Obligations, as the case may be, in
accordance with the provisions of Section 401; provided, however, that
if, due to the reinstatement of its rights or obligations hereunder, the
Issuer has made any payment of principal of (or premium, if any, on) or
interest, if any, on such Debt Securities, the Issuer shall be
subrogated to the rights of the Holders of such Debt Securities to
receive payment from such Amounts or Government Obligations, as the case
may be, held by the Trustee for such series."
7. Amendment of Article Five. Article Five is amended and supplemented by
adding the following Section 516 at the end thereof:
"Section 516. Judgment Currency.
If, for the purpose of obtaining a judgment in any court with respect
to any obligation of the Issuer and the Guarantors hereunder or under any
Debt Security or any related coupon, it shall become necessary to convert
into any other currency or currency unit any amount in the currency or
currency unit due hereunder or under such Debt Security or coupon, then
such conversion shall be made by the Currency Determination Agent at the
Market Exchange Rate as in effect on the date of entry of the judgment (the
"Judgment Date"). If pursuant to any such judgment, conversion shall be
made on a date (the "Substitute Date") other than the Judgment Date and
there shall occur a change between the Market Exchange Rate as in effect on
the Judgment Date and the Market Exchange Rate as in effect on the
Substitute Date, the Issuer and the Guarantors agree to pay such additional
amounts, if any, as may be necessary to ensure that the amount paid is
equal to the amount in such other currency or currency unit which, when
converted at the Market Exchange Rate as in effect on the Judgment Date, is
the amount due hereunder or under such Debt Security or coupon. Any amount
due from the Issuer and the Guarantors under this Section 516 shall be due
as a separate debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of any Debt
Security or coupon. In no event, however, shall the Issuer and the
Guarantors be required to pay more in the currency or currency unit due
hereunder or under such Debt Security or coupon at the Market Exchange
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Rate as in effect on the Judgment Date than the amount of currency or
currency unit stated to be due hereunder or under such Debt Security or
coupon so that in any event the Issuer and the Guarantor's obligations
hereunder or under such Debt Security or coupon will be effectively
maintained as obligations in such currency or currency unit, and the Issuer
and the Guarantors shall be entitled to withhold (or be reimbursed for, as
the case may be) any excess of the amount actually realized upon any such
conversion on the Substitute Date over the amount due and payable on the
Judgment Date."
8. Amendment of Article Six.
a. Section 603 is amended by adding the following language to the end
thereof:
"(h) The Trustee shall not be charged with knowledge of any default or
Event of Default with respect to the Debt Securities unless either (1) a
Responsible Officer shall have actual knowledge of such default or Event of
Default or (2) written notice of such Default or Event of Default shall
have been given to the Trustee by the Company or by any Holder of the Debt
Securities.
(i) When the Trustee incurs expenses or renders services in connection
with an Event of Default as specified in Section 501(4) or 501(5), the
expenses (including reasonable charges and expenses of its counsel) and the
compensation for services are intended to constitute expenses of
administration under any Bankruptcy Law."
b. Article Six is amended and supplemented by adding the following Section
614 at the end thereof:
"Section 614. Rights afforded Trustee.
In the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Securities Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article Six shall also
be afforded to such Paying Agent, Authenticating Agent or Securities
Registrar."
9. Amendment of Section 1003. Section 1003 is amended and supplemented by
deleting the existing Section 1003 thereof and replacing it with the following
Section 1003:
"Section 1003. Appointment of Paying Agents; Money for Debt Securities
Payments to be Held in Trust.
a. The Issuer and each of the Guarantors agrees, for the benefit of
the Holders from time to time of the Debt Securities, that, until all of
the Debt Securities of the applicable series are no longer outstanding
or until moneys for the payment of all of the principal of (and premium,
if any) and interest on all outstanding Debt Securities of such series
shall have been made available at the principal office of the Paying
Agents and paid to the Holders thereof or returned to the Issuer or to
the applicable Guarantor pursuant to clause (i) of Section 1003,
whichever occurs later, there shall at all times be a Paying Agent
hereunder. The Issuer and each of the Guarantors agrees, for the benefit
of the Holders from time to time of the Debt Securities of any series
denominated in a Foreign Currency, that, until all of the Debt
Securities of the applicable series are no longer outstanding or until
moneys for the payment of all of the principal of (and premium, if any)
and interest on all outstanding Debt Securities of such series
denominated in a Foreign Currency shall have been made available at the
principal office of the London Paying Agent and paid to the holders
thereof or returned to the Issuer or to the applicable Guarantor
pursuant to clause (i) of Section 1003, whichever occurs later, there
shall at all times be a London Paying Agent hereunder (and such London
Paying Agent, unless otherwise specified pursuant to Section 301, shall
also act as Authenticating Agent for such series pursuant to Section
312). Unless otherwise specified in accordance with Section 301 with
respect to any series of Debt Securities, the Issuer and Guarantors
hereby appoint the Trustee, at present having an office at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, as its Principal Paying Agent in New York to
the extent any series of Debt Securities are denominated in U.S.
Dollars, and, to the extent any series of Debt Securities are listed on
the Luxembourg Stock Exchange as provided in Section 000, Xxxxx
Xxxxxxxxx Xxxx Xxxxxxxxxx S.A., at present having an office at 0 Xxx
Xxxxxxx, X-0000 Xxxxxxxxxx, as its Luxembourg Paying Agent, and, to the
extent any series of Debt Securities are denominated in euros as
provided in
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Section 301, The Chase Manhattan Bank, London Branch, at present having
an office at Trinity Tower, 9 Xxxxxx Xxxx Street, London E1W 1YT, as its
Principal Paying Agent with respect to such series, in respect of the
Debt Securities, upon the terms and subject to the conditions herein and
therein set forth, it being understood that in their capacity as Paying
Agents hereunder, The Chase Manhattan Bank, Chase Manhattan Bank
Luxembourg S.A. and The Chase Manhattan Bank, London Branch, will
perform their duties exclusively through their offices in New York,
Luxembourg and London, respectively. The Paying Agents shall arrange for
the payment, from funds furnished by the Issuer or either Guarantor to
the applicable Paying Agents of the principal of (and premium, if any)
and interest on each series of Debt Securities on the date such payments
become due and payable. With respect to each series of Debt Securities
for which The Chase Manhattan Bank, Chase Manhattan Bank Luxembourg S.A.
and The Chase Manhattan Bank, London Branch, serve as Paying Agents,
such Paying Agent shall have the powers and authority granted to and
conferred upon them herein and in the notes or other instrument
evidencing such series of Debt Securities. Any Paying Agent,
Authenticating Agent or Securities Registrar appointed herein or
otherwise specified in accordance with Section 301 with respect to any
series of Debt Securities shall be afforded the rights and protections
afforded the Trustee pursuant to Article Six.
b. Each of the Paying Agents is herein referred to as an "Agent"
and they are referred to collectively as the "Agents". Prior to issuing
any series of Debt Securities, the Issuer will cause such Agents (other
than the Trustee) to execute and deliver to the Issuer (with a copy to
the Trustee unless the Trustee or the Paying Agent is also such Agent) a
written instrument in which such Agent shall agree to act as such
hereunder, unless such Agent has otherwise agreed to the provisions of
such instrument as pursuant to this Section 1003. The Issuer and the
Guarantors may also serve as Paying Agent or appoint any of its
affiliates to serve as Paying Agent. The Issuer will give to the Trustee
(unless the Trustee or the Paying Agent is also such Agent) written
notice of any change in the location of any office or agency of the
Agents hereunder. The Issuer shall have the right to vary or terminate
the appointment of any such office or agency.
c. Each Agent accepts its obligations set forth herein upon the
terms and conditions hereof and thereof. If an Agent shall change its
specified office, it shall give to the Issuer and the Trustee (unless
the Trustee or the Paying Agent is also such Agent) not less than 45
days' prior written notice to that effect giving the address of the new
office.
d. Any notice or other communication required to be given hereunder
to the Paying Agents shall be delivered in person, sent by letter or
telecopier or communicated by telephone (with prompt written
confirmation by telecopy) to the Paying Agents at the addresses
specified in the written instrument delivered to the Issuer by such
Agent in accordance with Section 1003(b). Any notice hereunder to the
Paying Agents given by letter, telecopy or telex shall be deemed to have
been received when it would have been received in the ordinary course of
post or transmission, as the case may be.
e. If the Issuer or either Guarantor shall act as its own Paying
Agent with respect to any series of Debt Securities, it will, on or
before each due date of the principal of (or premium, if any) or
interest on such series, set aside, segregate and hold in trust for the
benefit of the holders of the Debt Securities of such series a sum
sufficient to pay such principal (and premium, if any) or interest so
becoming due. The Issuer and the Guarantors, as the case may be, will
promptly notify the Trustee of any failure to take such action.
f. Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Debt Securities
hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer and the
Guarantors or any Paying Agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Issuer and such Guarantor or such
Paying Agent.
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g. In order to provide for the payment of the principal of (and
premium, if any) and interest on the Debt Securities of any series as
the same shall become due and payable on any payment date, the Issuer
and the Guarantors hereby agree to pay to such account or at such
offices of any Principal Paying Agent or Principal Paying Agents of a
specified series or as such Paying Agent shall specify in writing to the
Issuer not less than five Business Days prior to the payment date, in
the currency of payment with respect to the Debt Securities of such
series as designated pursuant to Section 301, on each Interest Payment
Date and at Maturity of the Debt Securities of such series (in each case
determined in accordance with the terms and conditions applicable to
such series), in immediately available funds available on such Interest
Payment Date or at Maturity, as the case may be, in an aggregate amount
which (together with any funds then held by the Paying Agent and
available for the purpose) shall be sufficient to pay the entire amount
of the principal of (and premium, if any) or interest, as applicable, on
the Debt Securities of such series becoming due on such Interest Payment
Date or at Maturity, and the Paying Agent shall hold such amount in
trust and apply it to the payment of any such principal, premium or
interest on such Interest Payment Date or at Maturity. Unless otherwise
specified as provided above in this Section 1003(g) or Section 1003(h),
such aggregate amount shall be paid to the account of the Paying Agent
in immediately available funds no later than 10:00 a.m. (Paying Agents'
time) on the Interest Payment Date or at Maturity, as the case may be.
In the event any Paying Agent is not also the Trustee, the Issuer will
cause such Paying Agent to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree (and by their
execution hereof, the London Paying Agent and Luxembourg Paying Agent
hereby agree) with the Trustee, subject to the provisions of this
Section 1003 and of Section 401, (1) that such Paying Agent shall hold
all sums held by such Paying Agent for the payment of the principal of
(and premium, if any) or interest, if any, on the Debt Securities of the
applicable series in trust for the benefit of the Holders of the Debt
Securities of such series until such sums shall be paid out to the
Holders of the Debt Securities of such series or otherwise as herein
provided, (2) that such Paying Agent shall give to the Trustee notice of
any default by the Issuer or either Guarantor or any other obligor upon
the Debt Securities of such series in the making of any deposit with
such Paying Agent for the payment of principal (and premium, if any) or
interest, if any, which shall have become payable and of any default by
the Issuer or either Guarantor or any other obligor upon the Debt
Securities of such series in making any such payment, and (3) that such
Paying Agent shall, at any time during the continuance of any such
default, upon the written request of the Trustee, deliver to the Trustee
all sums so held in trust by it.
h. Anything herein to the contrary notwithstanding, the Issuer and
the Guarantors shall not later than 10:00 a.m. London time on each date
on which any payment of principal (and premium, if any) or interest in
respect of any of series of Debt Securities denominated in a Foreign
Currency becomes due and payable transfer to such account as the London
Paying Agent may designate in writing in advance to the Issuer and the
Trustee such amount as shall be sufficient for the purposes of the
payment of principal (and premium, if any) or interest (together with
any funds then held by the London Paying Agent and available for the
purpose) in immediately available funds or in such funds and at such
times (being not later than 10:00 a.m. London time on the relevant due
date, or if the due date is not a Business Day, on the immediately
following Business Day). The Issuer shall ensure that not later than the
second Business Day immediately preceding the date on which any payment
is to be made to the London Paying Agent, the London Paying Agent shall
receive a copy of an irrevocable payment instruction to the bank through
which the payment is to be made.
i. All moneys paid by the Issuer or either Guarantor, as the case
may be, to the Trustee or any Paying Agent for the Debt Securities of
any series, or then held by the Issuer or either Guarantor, in trust for
the payment of the principal of (and premium, if any, on) and interest,
if any, on any Debt Security or in respect of any additional payments
thereon which remain unclaimed at the end of two years after such
principal (and premium, if any) and interest, if any, or additional
payments shall have become due and payable shall, unless otherwise
required by mandatory provisions of applicable escheat, or abandoned or
unclaimed property law, be repaid to the Issuer or such Guarantor, as
the case may be, on Issuer Request or Guarantor Request, as the case may
be, or (if then held by the
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Issuer or such Guarantor) shall be discharged from such trust; and the
Holder of such Debt Security will, thereafter, as an unsecured general
creditor, look only to the Issuer (or to each Guarantor pursuant to its
Guarantees) for payment thereof, and all liability of such Trustee or
such Paying Agent with respect to such trust money, and all liability of
the Issuer or such Guarantor, as trustee thereof, shall thereupon cease;
provided, however, that such Trustee or such Paying Agent, before being
required to make any such repayment may give notice to the Holder of
such Debt Security in the manner set forth in Section 106 that such
money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such notice, any
unclaimed balance of such money then remaining will, unless otherwise
required by mandatory provisions of applicable escheat, or abandoned or
unclaimed property law, be repaid to the Issuer or such Guarantor, as
the case may be; provided, further, that the Trustee or such Paying
Agent shall give written notice of any such unclaimed amounts to the
Issuer and such Guarantor within 30 days after the end of such two year
period.
j. The foregoing provisions of this Section 1003 are subject to the
provisions of Sections 401, 402 and 403."
10. Amendment of Section 1105. Section 1105 is amended and supplemented by
deleting the existing Section 1105 thereof and replacing it with the following
Section 1105:
"Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Issuer or either Guarantor
shall deposit with the Principal Paying Agent for the Debt Securities to be
redeemed (or, if the Issuer or such Guarantor is acting as its own Paying
Agent for such Debt Securities, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currency unit in which
the Debt Securities of such series are payable sufficient to pay the
principal amount (or, if the context so requires, lesser amount in the case
of Discounted Securities) of (and premium, if any, thereon), and (except if
the Redemption Date shall be an Interest Payment Date) any accrued interest
on, all the Debt Securities which are to be redeemed on the date."
11. Amendment of Section 1108. Section 1108 is amended and supplemented by
adding the following paragraph at the beginning thereof:
"Unless otherwise specified in accordance with Section 301 with
respect to any series of Debt Securities, the following provisions shall
apply:"
12. New York Law to Govern. This Fourth Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
13. Conflict of Any Provision of Indenture with Trust Indenture Act of
1939. If and to the extent that any provision of this Fourth Supplemental
Indenture limits, qualifies or conflicts with another provision included in this
Fourth Supplemental Indenture or in the Indenture which is required to be
included herein or therein by any of Sections 310 to 317, inclusive, of the
Trust Indenture Act of 1939, such required provision shall control.
14. Counterparts. This instrument 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.
15. Effect of Fourth Supplemental Indenture. Upon the execution of this
Fourth Supplemental Indenture, the Indenture shall be modified in accordance
herewith and this Fourth Supplemental Indenture shall form a part of the
Indenture for all purposes, and except as herein modified, all the provisions,
terms and conditions of the Indenture are in all respects ratified and confirmed
and shall remain in full force and effect. The provisions of this Fourth
Supplemental Indenture shall be applicable only to Debt Securities originally
issued after the date hereof.
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16. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Fourth
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which are made solely by the Issuer and the Guarantors.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental
Indenture to be duly executed, as of the date first referenced above.
XXXX ELSEVIER CAPITAL INC.,
as Issuer
By
--------------------------------------
Name:
Title:
XXXX INTERNATIONAL P.L.C.,
as Guarantor
By
--------------------------------------
Name:
Title:
ELSEVIER NV,
as Guarantor
By
--------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By
--------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, LONDON
BRANCH, as London Paying Agent
By
--------------------------------------
Name:
Title:
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00
XXXXX XXXXXXXXX XXXX XXXXXXXXXX S.A.,
as Luxembourg Paying Agent
By
--------------------------------------
Name:
Title:
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