Exhibit 4.6
ARCHER-DANIELS-MIDLAND COMPANY
and
THE BANK OF NEW YORK,
as
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated
as of June 3, 2008
THIS FIRST SUPPLEMENTAL INDENTURE,
dated as of June 3, 2008 (the “ First Supplemental
Indenture ”), between Archer-Daniels-Midland Company, a
corporation duly organized and existing under the laws of the State
of Delaware (the “ Company ”), and The Bank of
New York (as successor to JPMorgan Chase Bank, N.A.), as trustee
(the “ Trustee ”), amending and supplementing
the Indenture, dated as of September 20, 2006 between the
Company and the Trustee, governing the issuance of debt securities
(the “ Base Indenture ”). The Base Indenture, as
amended and supplemented by the First Supplemental Indenture, shall
be referred to herein as the “ Indenture
.”
RECITALS
WHEREAS, the Company executed and
delivered the Base Indenture to the Trustee to provide for the
future issuance of the Company’s unsecured debentures, notes
or other evidences of indebtedness (the “ Securities
”), to be issued from time to time in one or more series as
might be determined by the Company under the Base Indenture;
WHEREAS, clause (7) of
Section 901 of the Base Indenture provides for the Company and
the Trustee to enter into an indenture supplemental to the Base
Indenture to establish the form or terms of Securities of any
series as permitted by Section 201 and Section 301 of the
Base Indenture;
WHEREAS, pursuant to Section 301
of the Base Indenture, the Company wishes to provide for the
issuance of a new series of Securities to be known as its 4.70%
Debentures due 2041 (the “ Debentures ”), the
form and terms of such Debentures and the terms, provisions and
conditions thereof to be set forth as provided in this First
Supplemental Indenture; and
WHEREAS, the Company has requested
that the Trustee execute and deliver this First Supplemental
Indenture, and all requirements necessary to make this First
Supplemental Indenture a valid, binding and enforceable instrument
in accordance with its terms, and to make the Debentures, when
executed by the Company and authenticated and delivered by the
Trustee, the valid, binding and enforceable obligations of the
Company, have been done and performed, and the execution and
delivery of this First Supplemental Indenture has been duly
authorized in all respects.
NOW, THEREFORE, in consideration of
the covenants and agreements set forth herein and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Relation to Base
Indenture . This First Supplemental Indenture constitutes an
integral part of the Base Indenture, and supplements and amends the
Base Indenture solely with respect to the Debentures.
Section 1.02 Definition of
Terms . For all purposes of this First Supplemental
Indenture:
(a) a
term not defined herein that is defined in the Base Indenture has
the same meaning when used in this First Supplemental
Indenture;
(b) the
definition of any term in this First Supplemental Indenture that is
also defined in the Base Indenture shall supersede the definition
of such term in the Base Indenture;
(c) a
term not defined herein or in the Base Indenture shall have the
meaning set forth in the Purchase Contract and Pledge
Agreement.
(d) a
term defined anywhere in this First Supplemental Indenture has the
same meaning throughout;
(e) the
singular includes the plural and vice versa;
(f) headings
are for convenience of reference only and do not affect
interpretation;
(g) the
following terms have the meanings given to them in this
Section 1.02(g):
“ Accounting Event
” means the receipt by the audit committee of the
Company’s board of directors of a written report in
accordance with Statement on Auditing Standards (“SAS”)
No. 97, “Amendment to SAS No. 50—Reports on
the Application of Accounting Principles,” from the
Company’s independent registered public accounting firm,
provided at the request of management, to the effect that, as a
result of a change in accounting rules, or interpretations thereof,
after the date of original issuance of the Debentures, the Company
must either (a) account for the Purchase Contracts as
derivatives under SFAS 133 (or otherwise mark-to-market or measure
the fair value of all or any portion of the Purchase Contracts with
changes appearing in the Company’s income statement) or (b)
account for the Units using the if-converted method under SFAS 128,
and that such accounting treatment will cease to apply upon
redemption of the Debentures.
“ Applicable Ownership
Interest in Debentures ” has the meaning set forth in the
Purchase Contract and Pledge Agreement.
“ Applicable Principal
Amount ” means the aggregate principal amount of the
Debentures underlying the Applicable Ownership Interest in
Debentures that are components of the Corporate Units on the
Special Event Redemption Date.
“ Applicable Remarketing
Period ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“ Beneficial Owner
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Business Day ”
has the meaning set forth in the Purchase Contract and Pledge
Agreement.
“ Cash Settlement
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Collateral Account
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Collateral Agent
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Collateral
Substitution ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“ Corporate Unit ”
has the meaning set forth in the Purchase Contract and Pledge
Agreement.
“ Coupon Rate ”
has the meaning set forth in Section 2.05(a).
“ Custodial Agent
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Depositary ”
means a clearing agency registered under Section 17A of the
Exchange Act that is designated to act as depositary for the Global
Debentures as contemplated by Section 2.04.
“ Depositary Participant
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Early Settlement
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
2
“ Failed Final
Remarketing ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“ Failed Optional
Remarketing ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“ Failed Remarketing
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Final Remarketing
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Final Remarketing
Period ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“ Fundamental Change Early
Settlement ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“ Global Debenture
” has the meaning set forth in Section 2.04.
“ Interest Payment Date
” means a Quarterly Interest Payment Date or a Semiannual
Interest Payment Date, as applicable.
“ Interest Period
” means, with respect to any Interest Payment Date, the
period from and including the immediately preceding Interest
Payment Date on which interest was paid or duly provided for (or if
none, the date hereof) to, but excluding, such Interest Payment
Date.
“ Maturity Date ”
has the meaning set forth in Section 2.02.
“ Optional Redemption
” means the redemption of the Debentures pursuant to the
terms of Section 3.02.
“ Optional Redemption
Date ” has the meaning set forth in
Section 3.02.
“ Optional Remarketing
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Optional Remarketing
Period ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“ Person ” means a
legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company,
limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof or any
other entity of whatever nature.
“ Pledged Applicable
Ownership Interests in Debentures ” has the meaning set
forth in the Purchase Contract and Pledge Agreement.
“ Purchase Contract
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Purchase Contract
Agent ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“ Purchase Contract and
Pledge Agreement ” means the Purchase Contract and Pledge
Agreement, dated as of June 3, 2008, among the Company, The
Bank of New York, as Purchase Contract Agent, and attorney-in-fact
for Holders of the Purchase Contract, and The Bank of New York, as
Collateral Agent, Custodial Agent and Securities Intermediary, as
amended from time to time.
“ Purchase Contract
Settlement Date ” has the meaning set forth in the
Purchase Contract and Pledge Agreement.
“ Put Price ” has
the meaning set forth in Section 8.05(a).
“ Put Right ” has
the meaning set forth in Section 8.05(a).
“ Quarterly Interest Payment
Date ” has the meaning set forth in
Section 2.05(b)(i).
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“ Quotation Agent
” means any primary U.S. government securities dealer
selected by the Company.
“ Redemption ”
means either an Optional Redemption or a Special Event
Redemption.
“ Redemption Amount
” means, for each Debenture, an amount equal to the product
of the principal amount of such Debenture and a fraction, the
numerator of which is the Treasury Portfolio Purchase Price and the
denominator of which is the Applicable Principal Amount;
provided that in no event shall the Redemption Amount for
any Debenture be less than the principal amount of such
Debenture.
“ Redemption Date
” means either the Optional Redemption Date or Special Event
Redemption Date.
“ Redemption Price
” means, for each Debenture, (i) in the event of a
Special Event Redemption, the Redemption Amount and (ii) in
the event of an Optional Redemption, the principal amount, in each
case plus any accrued and unpaid interest on such Debenture to, but
excluding, the applicable Redemption Date.
“ Regular Record Date
” means, with respect to any Interest Payment Date for the
Debentures, the fifteenth day of the calendar month preceding the
calendar month in which such Interest Payment Date falls regardless
of whether such day is a Business Day.
“ Remarketed Debentures
” means, with respect to all Remarketings during any
Applicable Remarketing Period, the aggregate Debentures underlying
the Pledged Applicable Ownership Interests in Debentures and the
Separate Debentures, if any, subject to Remarketing as identified
to the Remarketing Agent by the Purchase Contract Agent and the
Custodial Agent, respectively, in each case by 11:00 a.m., New
York City time, in the case of an Optional Remarketing, or promptly
after 5:00 p.m., New York City time, in the case of a Final
Remarketing, on the Business Day prior to the first day of the
Applicable Remarketing Period in accordance with the Purchase
Contract and Pledge Agreement and shall include: (a) the
Debentures underlying the Pledged Applicable Ownership Interests in
Debentures of the holders of Corporate Units who have not effected
a Collateral Substitution, Early Settlement or a Fundamental Change
Early Settlement prior to the second Business Day preceding such
Applicable Remarketing Period, and, in the case of a Final
Remarketing, holders of Corporate Units who have not notified the
Purchase Contract Agent prior to 5:00 p.m., New York City time, on
the second Business Day immediately preceding the first day of the
Final Remarketing Period of their intention to effect a Cash
Settlement of the related Purchase Contracts pursuant to the terms
of the Purchase Contract and Pledge Agreement or who have so
notified the Purchase Contract Agent but failed to make the
required cash payment prior to 5:00 p.m., New York City time, on
the Business Day immediately preceding the first day of the Final
Remarketing Period, and (b) the Separate Debentures of the
holders of Separate Debentures, if any, who have elected to have
their Separate Debentures remarketed in such Remarketing pursuant
to the terms of the Purchase Contract and Pledge Agreement.
“ Remarketing ”
has the meaning set forth in the Purchase Contract and Pledge
Agreement.
“ Remarketing Agent(s)
” means the nationally recognized investment banking firm(s)
to be appointed by the Company, or any successor thereto or
replacement Remarketing Agent(s) appointed by the Company, pursuant
to the Remarketing Agreement.
“ Remarketing Agreement
” means the Remarketing Agreement to be entered into among
the Company and the Remarketing Agent(s) and The Bank of New York,
as Purchase Contract Agent, substantially in the form attached to
the Purchase Contract and Pledge Agreement as Exhibit P, as
amended from time to time in accordance with its terms.
“ Remarketing Date
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Remarketing Price
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Remarketing Settlement
Date ” has the meaning set forth in the Purchase Contract
and Pledge Agreement.
“ Reset Rate ” has
the meaning set forth in the Purchase Contract and Pledge
Agreement.
“ Semiannual Interest
Payment Date ” has the meaning set forth in
Section 2.05(b)(ii).
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“ Separate Debentures
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“Special Event ”
shall mean either a Tax Event or an Accounting Event.
“ Special Event
Redemption ” means a redemption effected in connection
with and as a result of the occurrence of a Special Event pursuant
to Section 3.01.
“ Special Event Redemption
Date ” has the meaning set forth in
Section 3.01.
“ Successful Optional
Remarketing ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“ Successful Remarketing
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Tax Event ”
means the receipt by the Company of an opinion of counsel, rendered
by a law firm having a recognized national tax practice, to the
effect that, as a result of any amendment to, change in or
announced proposed change in the laws (or any regulations
thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative decision, pronouncement, judicial decision or action
interpreting or applying such laws or regulations, which amendment
or change is effective or which proposed change, pronouncement,
action or decision is announced on or after the date of issuance of
the Debentures, there is more than an insubstantial increase in the
risk that interest payable by the Company on the Debentures is not,
or within 90 days of the date of such opinion, will not be,
deductible by the Company, in whole or in part, for United States
federal income tax purposes.
“ Termination Event
” has the meaning set forth in the Purchase Contract and
Pledge Agreement.
“ Treasury Portfolio
” means a portfolio of U.S. Treasury securities (or principal
or interest strips thereof) that mature on or prior to May 31,
2011 in an aggregate amount at maturity equal to the Applicable
Principal Amount and with respect to each scheduled Interest
Payment Date on the Debentures that occurs after the Special Event
Redemption Date, to and including the Purchase Contract Settlement
Date, U.S. Treasury securities (or principal or interest strips
thereof) that mature on or prior to the Business Day immediately
preceding such scheduled Interest Payment Date in an aggregate
amount at maturity equal to the aggregate interest payment
(assuming no reset of the interest rate) that would be due on the
Applicable Principal Amount of the Debentures on such date.
“ Treasury Portfolio
Purchase Price ” means the lowest aggregate ask-side
price quoted by a primary U.S. government securities dealer to the
Quotation Agent between 9:00 a.m. and 4:00 p.m., New York City
time, on the third Business Day immediately preceding the Special
Event Redemption Date for the purchase of the Treasury Portfolio
for settlement on the Special Event Redemption Date.
“ Treasury Unit ”
has the meaning set forth in the Purchase Contract and Pledge
Agreement.
The terms “ Company
,” “ Trustee ,” “ Indenture
,” “ Base Indenture, ” “
Securities ” and “ Debentures ”
shall have the respective meanings set forth in the recitals and
the paragraph preceding the recitals to this First Supplemental
Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
Section 2.01 Designation and
Principal Amount . There is hereby authorized a series of
Securities designated as 4.70% Debentures due 2041 limited in
aggregate principal amount to $1,750,000,000 (up to $2,000,000,000
if the Underwriters exercise their over-allotment option in full);
provided, however , that the Company, without notice to or
consent of the Holders, may issue additional Securities of this
series and thereby increase such principal amount in the future, on
the same terms and conditions (except for issue date, public
offering price and, if applicable, the date from which interest
accrues and the first Interest Payment Date) and with the same
CUSIP number as the Securities of this series. The Debentures may
be issued from time to time upon written order of the Company for
the authentication and delivery of Debentures pursuant to Section
303 of the Base Indenture.
5
Section 2.02 Maturity .
Unless a Special Event Redemption or an Optional Redemption occurs
prior to the Maturity Date (defined below), the date upon which the
Debentures shall become due and payable at final maturity, together
with any accrued and unpaid interest, is, initially, June 1,
2041 (the “ Maturity Date ”).
Section 2.03 Form, Payment
and Appointment . Except as provided in Section 2.04, the
Debentures shall be issued in fully registered, certificated form,
bearing identical terms. Debentures corresponding to Applicable
Ownership Interests in Debentures that are components of Corporate
Units shall be registered in the name of the Purchase Contract
Agent. Principal of and interest on the Debentures will be payable,
the transfer of such Debentures will be registrable, and such
Debentures will be exchangeable for Debentures of a like aggregate
principal amount bearing identical terms and provisions, at the
office or agency of the Company maintained for such purpose in the
Borough of Manhattan, The City of New York, which shall initially
be the Corporate Trust Office of the Trustee; provided,
however , that payment of interest may be made at the option of
the Company by check mailed to the Holder at such address as shall
appear in the Security Register or by wire transfer to an account
appropriately designated by the Holder entitled to payment at least
10 Business Days prior to the applicable Interest Payment Date.
Payments with respect to any Global Debenture will be made by wire
transfer to the Depositary.
No service charge shall be made for
any registration of transfer or exchange of the Debentures, but the
Company may require payment from the Holder of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection therewith.
The Paying Agent and Security
Registrar for the Debentures shall initially be the Trustee.
The Debentures shall be issuable in
denominations of $1,000 and integral multiples of $1,000 in excess
thereof; provided, however , that upon the release by the
Collateral Agent of Debentures underlying the Pledged Applicable
Ownership Interests in Debentures (other than any release of
Debentures underlying Pledged Applicable Ownership Interests in
Debentures in connection with (i) the creation of Treasury Units by
Collateral Substitution, (ii) a Successful Remarketing, (iii)
Fundamental Change Early Settlement, (iv) Early Settlement
with separate cash or (v) Cash Settlement, in accordance with
Section 3.13, Section 5.02, Section 5.03(b),
Section 5.05, Section 5.08 or Section 5.03(a) of the
Purchase Contract and Pledge Agreement, as the case may be), the
Debentures shall be issuable in denominations of $50 and integral
multiples of $50 in excess thereof, and the Company shall issue
Debentures in any such denominations if requested by the Purchase
Contract Agent on behalf of any Holder or Beneficial Owner.
Section 2.04 Global
Debentures . Debentures corresponding to Applicable Ownership
Interests in Debentures that are no longer a component of the
Corporate Units and are released from the Collateral Account will
be issued in permanent global form (a “ Global
Debenture ”), and if issued as one or more Global
Debentures, the Depositary shall be The Depository Trust Company or
such other depositary as any officer of the Company may from time
to time designate. On the date on which the Debentures registered
in the name of the Purchase Contract Agent pursuant to
Section 2.03 are issued, the Company shall also issue one or
more Global Debentures, registered in the name of the Depositary or
its nominee, each having a zero principal balance. Upon the
creation of Treasury Units, or the recreation of Corporate Units or
in any other case where the Collateral Agent releases Debentures
underlying the Pledged Applicable Ownership Interests in
Debentures, an appropriate annotation shall be made on the Schedule
of Increases and Decreases in Debenture on the Global Debentures
held by the Depositary. Debentures represented by the Global
Debentures will be exchangeable for Debentures in certificated form
only (x) if the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the Global
Debentures or if at any time the Depositary ceases to be a clearing
agency registered under the Exchange Act, and the Company has not
appointed a successor Depositary within 90 days of that notice
or of its becoming aware of such cessation or (y) upon
recreation of Corporate Units; provided that the Debentures
in certificated form so issued in exchange for the Global
Debentures shall be in denominations of $1,000 or any whole
multiple of $1,000 above that amount and be of like aggregate
principal amount and tenor as the portion of the Global Debenture
to be exchanged. Except as provided above, owners of beneficial
interest in a Global Debenture will not be entitled to receive
physical delivery of Debentures in certificated form and will not
be considered the Holders thereof for any purpose under the
Indenture. Unless and until such Global Debenture is exchanged for
Debentures in certificated form, Global Debentures may be
transferred, in whole but not in part, and any payments on the
Debentures shall be made, only to the Depositary or a nominee of
the Depositary, or to a successor Depositary selected or approved
by the Company or to a nominee of such successor Depositary. Any
Global Debenture that is exchangeable pursuant to clause
(x) of the
6
fourth
sentence of this Section 2.04 shall be exchangeable for
Debentures in certificated form registered in such names as the
Depositary shall direct.
Section 2.05 Interest
.
(a) The
Debentures will bear interest initially at the rate of 4.70% per
year (the “ Coupon Rate ”) from and including
June 3, 2008 to, but excluding, the Maturity Date, or in the
event of a Successful Remarketing, the Remarketing Settlement Date.
In the event of a Successful Remarketing of the Debentures, the
Coupon Rate for all Debentures (regardless of whether such
Debentures are Remarketed Debentures) will be reset by the
Remarketing Agents to the Reset Rate with effect from the
Remarketing Settlement Date, as set forth in Section 8.03. If
the Coupon Rate is so reset, the Debentures will bear interest at
the Reset Rate from and including the Remarketing Settlement Date
to, but excluding, the Maturity Date. The Debentures shall bear
interest, to the extent permitted by law, on any overdue principal
and interest at the Coupon Rate, unless a Successful Remarketing
shall have occurred, in which case interest on such amounts shall
accrue at the Reset Rate from and after the Remarketing Settlement
Date, in each case, compounded quarterly through the Remarketing
Settlement Date and compounded semiannually thereafter.
(b)
(i) Prior to and, if such date falls on a Quarterly Interest
Payment Date (defined below), on the Remarketing Settlement Date
or, in the event no Successful Remarketing occurs, prior to and on
the Purchase Contract Settlement Date, interest on the Debentures
shall be payable quarterly in arrears on March 1, June 1,
September 1 and December 1 of each year (each, a “
Quarterly Interest Payment Date ”), commencing
September 1, 2008, to the Person in whose name the relevant
Debentures are registered at the close of business on the Regular
Record Date for such Interest Payment Date.
(ii) After
the Remarketing Settlement Date, if any, or, in the event no
Successful Remarketing occurs, after the Purchase Contract
Settlement Date, interest on the Debentures shall be payable
semiannually in arrears on March 1 and September 1 of each year
(each, a “ Semiannual Interest Payment Date ”),
commencing September 1, 2011, to the Person in whose name the
relevant Debentures are registered at the close of business on the
Regular Record Date for such Interest Payment Date.
(c) The
amount of interest payable for any full Interest Period will be
computed on the basis of a 360-day year consisting of twelve 30-day
months. The amount of interest payable for any period shorter than
a full Interest Period for which interest is computed will be
computed on the basis of a 30-day month and, for any period less
than a month, on the basis of the actual number of days elapsed per
30-day month. In the event that any scheduled Interest Payment Date
falls on a day that is not a Business Day, then payment of interest
payable on such Interest Payment Date will be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay).
Section 2.06 No
Defeasance . Section 403 of the Base Indenture shall not
apply to the Debentures.
Section 2.07 No Sinking Fund
or Repayment at Option of the Holder . The Debentures are not
entitled to the benefit of any sinking fund a
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