EXHIBIT 4.2
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of December 10, 2002 (this
"Supplemental Indenture"), is between XXXXXXXX CORPORATION, a New York
corporation (the "Issuer"), and THE BANK OF NEW YORK, a New York banking
corporation authorized to accept and execute trusts, as trustee (the "Trustee").
WITNESSETH
WHEREAS, pursuant to the Indenture, dated as of May 1, 1991, between
the Issuer and the Trustee, as successor to Xxxxxx Trust and Savings Bank, as
trustee (the "Indenture"), the Issuer may from time to time issue and sell debt
securities in one or more series;
WHEREAS, the Issuer desires to create and authorize the series of
7.625% Notes due 2012 limited initially to $500,000,000 in aggregate principal
amount (the "Notes"), and to provide the terms and conditions upon which the
Notes are to be executed, registered, authenticated, issued and delivered, the
Issuer has duly authorized the execution and delivery of this Supplemental
Indenture;
WHEREAS, the Notes are a series of Securities (as that term is defined
in the Indenture) and are being issued under the Indenture, as supplemented by
this Supplemental Indenture, and are subject to the terms contained therein and
herein;
WHEREAS, the Notes are to be substantially in the form attached hereto
as EXHIBIT A;
WHEREAS, the Issuer and the Trustee may enter into this Supplemental
Indenture without the consent of the holders of the Securities Outstanding (as
that term is defined in the Indenture) as of the date hereof pursuant to
Sections 7.1(f) and 7.1(g) of the Indenture;
WHEREAS, all acts and things necessary to make the Notes, when executed
by the Issuer and authenticated and delivered by or on behalf of the Trustee as
provided in this Supplemental Indenture, the valid, binding and legal
obligations of the Issuer, and to make this Supplemental Indenture a legal,
binding and enforceable agreement, have been done and performed;
NOW, THEREFORE, in order to declare the terms and conditions upon which
the Notes are executed, registered, authenticated, issued and delivered, and in
consideration of the foregoing premises and the purchase of such Notes by the
holders thereof, the Issuer and the Trustee mutually covenant and agree, for the
equal and proportionate benefit of the holders from time to time of the Notes,
as follows:
Section 1. Definitions. Terms used in this Supplemental Indenture and
not defined herein shall have the respective meanings given such terms in the
Indenture. As used in this Supplemental Indenture, unless a different meaning
clearly appears from the context, the following terms shall have the meanings
indicated below:
"Book-Entry Notes" means those Notes for which a Securities Depository
or its nominee is the holder.
"Letter of Representations" means (i) the Blanket Letter of
Representations dated December 6, 2002, executed by the Issuer and delivered to
the Securities Depository and any amendments thereto, (ii) any successor blanket
agreements between the Issuer and any successor Securities Depository, relating
to a book-entry system to be maintained by the Securities Depository with
respect to any bonds, notes or other obligations issued by the Issuer, including
the Book-Entry Notes, or (iii) any successor agreements between the Issuer and
the Trustee and any successor Securities Depository, relating to a book-entry
system to be maintained by the Securities Depository with respect to the Notes.
"Securities Depository" means a Person that is registered as a clearing
agency under Section 17A of the Securities Exchange Act of 1934 or whose
business is confined to the performance of the functions of a clearing agency
with respect to exempted securities, as defined in Section 3(a)(12) of such Act
for the purposes of Section 17A thereof.
Section 2. Creation and Authorization of Series. There is hereby
created and authorized the series of Notes entitled the "7.625% Notes Due 2012,"
which shall be a series limited initially to $500,000,000 in aggregate principal
amount. Notwithstanding the foregoing initial aggregate principal amount, the
Issuer may, without the consent of the holders of the Notes, reopen this series
of Notes and issue an unlimited amount of additional notes having the same
ranking, interest rate, maturity and other terms as the Notes; provided, that,
the Issuer may reopen this series of Notes only if the additional notes issued
will be fungible with the Notes for United States federal income tax purposes.
Any such additional notes, together with the Notes, will be consolidated with
and constitute a single series of Securities under the Indenture.
Section 3. Certain Provisions Applicable to the Series.
(a) Except as otherwise set forth herein and in the Notes, the
terms of the Notes shall be as set forth in the Indenture, including those made
part of the Indenture by reference to the Trust Indenture Act of 1939. Holders
are referred to the Indenture and the Trust Indenture Act of 1939 for a
statement of such terms.
(b) The Notes shall include all of the terms in the form of the
Notes attached hereto as EXHIBIT A.
(c) The provisions of Section 10.5 of the Indenture entitled
"Mandatory and Optional Sinking Funds" shall not be applicable to the Notes.
Section 4. Securities Depository Provisions. The Notes shall be issued
initially as Book-Entry Notes. All Book-Entry Notes shall be registered in the
name of Cede & Co., as nominee of The Depository Trust Company ("DTC"). The
Issuer has executed and delivered a Letter of Representations to DTC. All
payments of principal of, redemption premium, if any, and interest on the
Book-Entry Notes and all notices with respect thereto, including notices of
full or partial redemption, shall be made and given at the times and in the
manner set out in the Letter of Representations. The terms and provisions of
the Letter of Representations shall govern in the event of any inconsistency
between the provisions of the Indenture and the Letter
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of Representations. The Letter of Representations may be amended without consent
of the holders of the Notes.
The book-entry registration system for all of the Book-Entry Notes may
be terminated and certificates delivered to and registered in the name of the
beneficial owners of the Book-Entry Notes, under either of the following
circumstances:
(a) DTC notifies the Issuer and the Trustee that it is no longer
willing or able to act as Securities Depository for the
Book-Entry Notes and a successor Securities Depository for the
Book-Entry Notes is not appointed by the Issuer within 90
days; or
(b) The Issuer determines that the Book-Entry Notes are
exchangeable.
If a successor Securities Depository is appointed by the Issuer, the
Book-Entry Notes will be registered in the name of such successor Securities
Depository or its nominee. If certificates are required to be issued to
beneficial owners of the Book-Entry Notes, the Trustee and the Issuer shall be
fully protected in relying upon a certificate of DTC or any DTC participant as
to the identity of and the principal amount of Book-Entry Notes held by such
beneficial owners.
The beneficial owners of the Book-Entry Notes will not receive physical
delivery of certificates except as provided in this Supplemental Indenture. For
so long as there is a Securities Depository for the Notes, all of such Notes
shall be registered in the name of the nominee of the Securities Depository, all
transfers of beneficial ownership interests in such Notes will be made in
accordance with the rules of the Securities Depository, and no investor or other
party purchasing, selling or otherwise transferring beneficial ownership of such
Notes is to receive, hold or deliver any certificate. The Issuer and the Trustee
shall have no responsibility or liability for transfers of beneficial ownership
interests in such Notes.
The Issuer and the Trustee will recognize the Securities Depository or
its nominee as the holder of the Book-Entry Notes for all purposes, including
receipt of payments, notices and voting; provided the Trustee may recognize
votes by or on behalf of beneficial owners as if such votes were made by holders
of a related portion of the Notes when such votes are received in compliance
with an omnibus proxy of the Securities Depository or otherwise pursuant to the
rules of the Securities Depository or the provisions of the Letter of
Representations or other comparable evidence delivered to the Trustee by the
holders of the Notes.
With respect to a Book-Entry Note, the Issuer and the Trustee shall be
entitled to treat the Person in whose name such Note is registered as the
absolute owner of such Note for all purposes of the Indenture, and neither the
Issuer nor the Trustee shall have any responsibility or obligation to any
beneficial owner of such Note. Without limiting the immediately preceding
sentence, neither the Issuer nor the Trustee shall have any responsibility or
obligation with respect to (a) the accuracy of the records of any Securities
Depository or any other Person with respect to any ownership interest in
Book-Entry Notes, (b) the delivery to any Person, other than a holder of the
Notes, of any notice with respect to Book-Entry Notes, including any notice of
redemption or refunding, (c) the selection of the particular Notes or portions
thereof to be redeemed or refunded in the event of a partial redemption or
refunding of part of the Notes
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Outstanding or (d) the payment to any Person, other than a holder of the Notes,
of any amount with respect to the principal of, redemption premium, if any, or
interest on the Book-Entry Notes.
Notwithstanding the provisions of Section 10.2 of the Indenture, in the
event of a partial redemption of the Notes in accordance with the Indenture and
this Supplemental Indenture, the Securities Depository for Book-Entry Notes
shall select Notes for redemption according to its stated procedures. In
selecting Book-Entry Notes for redemption, each Note shall be considered as
representing that number of Notes which is obtained by dividing the principal
amount of such Note by the minimum authorized denomination.
Section 5. Effect of Supplemental Indenture. The provisions of this
Supplemental Indenture are intended to supplement those of the Indenture as in
effect immediately prior to the execution and delivery hereof. The Indenture
shall remain in full force and effect except to the extent that the provisions
of the Indenture are expressly modified by the terms of this Supplemental
Indenture.
Section 6. Governing Law. This Supplemental Indenture shall be deemed
to be a contract under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of such State, except as may
otherwise be required by mandatory provisions of law.
Section 7. Trustee Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein shall be taken as statements of the Issuer, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Supplemental
Indenture or of the Notes other than with respect to the Trustee's
authentication and execution. The Trustee shall not be accountable for the use
or application by the Issuer of the Notes or the proceeds thereof.
Section 8. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act of
1939 that is required under such Act to be a part of and govern this
Supplemental Indenture, the latter provisions shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act of
1939 that may be so modified or excluded, the latter provision shall be deemed
to apply to this Supplemental Indenture as so modified or to be excluded, as the
case may be.
Section 9. Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which shall be deemed to be an original for
all purposes; and all such counterparts shall together constitute but one and
the same instrument.
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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 day and year first above
written.
XXXXXXXX CORPORATION
By:
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
[CORPORATE SEAL]
Attest:
By:
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
THE BANK OF NEW YORK
By:
----------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
--------------------------
Name:
Title:
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EXHIBIT A
GLOBAL XXXXXXXX NOTE
REGISTERED
No. R-1 Principal Amount: $500,000,000
CUSIP: 382388 AP 1
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
XXXXXXXX CORPORATION
7.625% NOTES DUE 2012
XXXXXXXX CORPORATION, a corporation duly organized and existing under
the laws of the State of New York (herein called the "Company"), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of $500,000,000, on December 15, 2012, and to pay interest thereon
semi-annually on June 15 and December 15 (the "Interest Payment Dates") in each
year, commencing June 15, 2003, at the rate of 7.625 percent per annum until the
principal hereof is paid or made available for payment. Notwithstanding the
foregoing, this note (this "Security") shall bear interest from the most recent
Interest Payment Date to which interest in respect hereof has been paid or duly
provided for, unless (i) the date hereof is such an Interest Payment Date, in
which case from the date hereof, or (ii) no interest has been paid on this
Security, in which case from December 10, 2002; provided, however, that if the
Company shall default in the payment of interest due on the date hereof, then
this Security shall bear interest from the next preceding Interest Payment Date
to which Interest has been paid or, if no interest has been paid on this
Security, from December 10, 2002. Notwithstanding the foregoing, if the date
hereof is after the June 1 or December 1 (whether or not a Business Day) (the
"Record Date"), as the case may be, next preceding an Interest Payment Date and
before such Interest Payment Date, this Security shall bear interest from such
Interest Payment Date; provided, however, that if the Company shall default in
the payment of interest due on such Interest Payment Date, then this Security
shall bear interest from the next preceding Interest Payment Date to which
interest has been paid or, if no interest has been paid on this Security, from
December 10, 2002. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, subject to certain exceptions provided
in the Indenture referred to on the reverse hereof, be paid to the Person in
whose name this Security is registered at the close of business on the Record
Date next preceding such Interest Payment Date.
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Payment of the principal of and any such interest on this Security will
be made at the office or agency of the Company maintained for that purpose in
New York City in such coin or currency of the United States of America as at the
time is legal tender for the payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATED: December 10, 2002 XXXXXXXX CORPORATION
By:
------------------------------
Title: Vice President and Treasurer
Attest:
By:
----------------------------
Title: Vice President and Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
----------------------------
Authorized Officer
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REVERSE OF SECURITY
XXXXXXXX CORPORATION
7.625% NOTES DUE 2012
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of May 1, 1991, between the Company and The
Bank of New York, as successor to Xxxxxx Trust and Savings Bank, as Trustee
(herein called the "Trustee") and the Second Supplemental Indenture, dated as of
December 10, 2002, between the Company and the Trustee (collectively, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, obligations, duties and immunities thereunder of the Company, the
Trustee and the holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of a series designated on the face hereof limited initially to $500,000,000 in
aggregate principal amount. The separate series of Securities may be issued in
various aggregate principal amounts, may mature at different times, may bear
interest, if any, at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking or purchase funds (if
any), may be subject to different repayment provisions (if any), may be subject
to different covenants and Events of Default and may otherwise vary as provided
in the Indenture. The Indenture further provides that the Securities of a single
series may be issued at various times, with different maturity dates, may bear
interest, if any, at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking or purchase funds (if
any) and may be subject to different repayment provisions (if any).
Any payment required to be made with respect to this Security on a day
that is not a Business Day need not be made on such day, but may be made on the
next succeeding Business Day with the same force and effect as if made on such
day, and no interest shall accrue for the period from and after such date to the
date of payment.
This Security is redeemable, in whole or in part, at any time from time
to time, at the option of the Company, at a redemption price equal to the
greater of (1) 100% of the principal amount of the Security and (2) the sum of
the present values of the remaining scheduled payments of principal and interest
thereon (not including any portion of any payment of interest accrued to the
redemption date) discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 45 basis points, plus, in each case, accrued and unpaid interest
thereon to the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable to the
remaining term of the Securities of this series to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date
for the Securities of this series, (i) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (ii) if the
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Trustee obtains fewer than four Reference Treasury Dealer Quotations, the
average of all Reference Treasury Deal Quotations.
"Reference Treasury Dealer" means each of X.X. Xxxxxx Securities Inc.,
Banc One Capital Markets, Inc., Xxxxxxx Xxxxx Xxxxxx Inc. (or their respective
affiliates which are Primary Treasury Dealers) and their respective successors
and one additional Primary Treasury Dealer selected by the Company; provided,
however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date for the
Securities of this series, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such redemption date. The
Treasury Rate shall be calculated on the third Business Day preceding the
redemption date.
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof having
the same interest rate and maturity as this Security will be issued in the name
of the holder hereof upon the cancellation hereof.
Except as set forth above, the Securities of this series will not be
redeemable by the Company prior to maturity and will not be entitled to the
benefit of any sinking fund.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, then the Trustee or the holders of not less than 25% in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities of this series then Outstanding may declare the principal of the
Securities of this series and accrued interest thereon, if any, to be due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment or supplementing thereof and the modification of the rights and
obligations of the Company and the rights of the holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the holders of not less than a majority in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities at the time Outstanding of all series to be affected (all such series
voting as a single class). The Indenture also contains provisions permitting the
holders of not less than a majority in aggregate principal amount (calculated as
provided in the Indenture) of the Securities of each series at the time
Outstanding, on behalf of the holders of all Securities of such series, to waive
certain past defaults or Events of Default under the Indenture and the
consequences of any such defaults or Events of Default. Any such consent or
waiver by the holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all future
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holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest, if any, on
this Security at the times, place, and rate, if any, and in the coin or
currency, herein prescribed.
The Securities of this series are being issued by means of a
book-entry system with no physical distribution of note certificates to be made
except as provided in the Indenture. As provided in the Indenture and subject
to certain limitations set forth therein, the transfer of this Security is
registrable in the Security register, upon due presentment of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of and interest, if any, on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security registrar duly executed by, the
holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, having the same interest rate and maturity
and bearing interest from the same date as this Security, of any authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations set forth therein,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination having the
same interest rate and maturity and bearing interest from the same date as such
Securities, as requested by the holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue and notwithstanding any
notation of ownership or other writing thereon, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary. All
payments made to or upon the order of such registered holder, shall, to the
extent of the sum or sums paid, effectually satisfy and discharge liability for
monies payable on this Security.
No recourse for the payment of the principal of or interest, if any, on
this Security, or for any claim based hereon or otherwise in respect hereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in the Indenture or any indenture supplement thereto or in any Security, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, official or director, as such, past,
present, or future, of the Company or of any successor entity, either directly
or through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the
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enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
All terms used in this Security and not otherwise defined herein which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
This Security shall be governed by and construed in accordance with the
laws of the State of New York.
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FOR VALUE RECEIVED, ___________________________________________ the
undersigned hereby sell(s), assign(s) and transfers unto
[PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER OF ASSIGNEE]
!
!
!
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OR ASSIGNEE]
the within Security and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________ attorney to transfer the within
Security on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
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NOTICE:
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The signature to this assignment must correspond with the name
as it appears upon the face of the within Security in every
particular, without alteration or enlargement or any change
whatever.
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