HANSON BUILDING MATERIALS LIMITED Company HANSON PLC Successor Company and THE BANK OF NEW YORK Trustee First Supplemental Indenture Dated as of February 10, 2004 to the Indenture Dated as of September 27, 2000 Providing for the Issuance of Senior...
EXHIBIT 2.5
____________________________
XXXXXX BUILDING MATERIALS LIMITED
Company
XXXXXX PLC
Successor Company
and
THE BANK OF NEW YORK
Trustee
____________________________
Dated as of February 10, 2004
to the
Indenture
Dated as of September 27, 2000
____________________________
Providing for the Issuance of Senior
Debt Securities
(Unlimited as to Aggregate Principal Amount)
RECITALS:
WHEREAS, Section 9.1 of the Indenture permits the sale, conveyance, transfer or lease of the property of the Company, as an entirety or substantially as an entirety, to any other corporation authorized to acquire and operate the same, provided that the due and punctual payment of the principal of and interest, if any, on all of the Securities and all other amounts payable on the Securities pursuant to the terms of the Indenture, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be performed by the Company are expressly assumed by supplemental indenture satisfactory to the Trustee, executed and delivered to the Trustee by the corporation which shall have acquired such property;
WHEREAS, Section 8.1(a) of the Indenture permits the Company and the Trustee to enter into a supplemental indenture to the Indenture without the consent of the Holders of the Securities to evidence the succession of another corporation to the Company and the assumption by any such successor of the covenants of the Company in the Indenture and in the Securities;
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WHEREAS, the Trustee has received: (i) an Opinion of Counsel pursuant to Sections 8.4 and 9.3 of the Indenture stating that the execution of this Supplemental Indenture is authorized and permitted by the Indenture and that all conditions precedent under the Indenture in connection with the execution and delivery of the Supplemental Indenture have been complied with; (ii) an Officers’ Certificate pursuant to Section 1.2 of the Indenture; and (iii) a copy of a Board Resolution of both the Company and the Successor Company authorizing this Supplemental Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Company, the Successor Company and the Trustee, in accordance with its terms, have been done.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
The Company and the Successor Company covenant and agree with the Trustee as follows:
ARTICLE ONE
ASSUMPTION OF COMPANY OBLIGATIONS
Section 1.1 Assumption of Company Obligations.
The Successor Company hereby:
(a) assumes the obligations of the Company under the Indenture regarding the due and punctual payment of the principal of and interest, if any, on all of the Securities and all other amounts payable on the Securities pursuant to the terms of the Indenture, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company;
(b) agrees that any amounts to be paid by the Company in respect of the Securities shall be paid by the Successor Company without deduction or withholding for any and all present and future taxes, levies, imposts or other governmental charges whatsoever imposed, assessed, levied or collected by or for the account of the jurisdiction where the Successor Company is incorporated or any political subdivision or taxing authority thereof or therein or, if deduction or withholding of any such taxes, levies, imposts or other governmental charges shall at any time be required by such jurisdiction or any such subdivision or authority thereof, the Successor Company will (subject to compliance by the Holders or beneficial owners of such Securities with any relevant administrative requirements) pay such additional amounts in respect of principal, premium, if any, interest, if any, and sinking fund payments, if any, as may be necessary in order that the net amounts paid to the Holders of the Securities or the Trustee under the Indenture, as the case may be, after such deduction or withholding, shall equal the respective amounts of principal, premium, if any, interest, if any, and sinking fund payments, if any, as specified in the Securities to which such Holders or the Trustee is entitled; provided, however, that the foregoing shall not apply to:
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(i) any present or future taxes, levies, imposts or other governmental charges which would not have been so imposed, assessed, levied or collected but for the fact that the Holder or beneficial owner of the relevant Security is or has been a domiciliary, national or resident of, or engaging or having been engaged in business or maintaining or having maintained a permanent establishment or being or having been physically present in, such jurisdiction or such political subdivision or otherwise having or having had some connection with such jurisdiction or such political subdivision other than the holding or ownership of a Security, or the collection of principal of, premium, if any, and interest, if any, on, or the enforcement of, a Security;
(ii) any present or future taxes, levies, imposts or other governmental charges which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date such payment became due or was provided for, whichever is later;
(iii) any present or future taxes, levies, imposts or other governmental charges which are payable otherwise than by deduction or withholding from payments on or in respect of the relevant Security;
(iv) any present or future taxes, levies, imposts or other governmental charges which would not have been so imposed, assessed, levied or collected but for the failure to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with such jurisdiction or any political subdivision or authority thereof of the Holder or beneficial owner of the relevant Security, if compliance is required by statute or by regulation of such jurisdiction or such political subdivision or authority thereof as a condition to relief or exemption from such taxes, levies, imposts or other governmental charges;
(v) any present or future taxes, levies, imposts or other governmental charges which would not have been so imposed, assessed, levied or collected but for the fact that the Securities are held in definitive form and such Securities have been issued at the request of the Holder or any previous Holder;
(vi) any present or future taxes, levies, imposts or other governmental charges (A) which would not have been so imposed, assessed, levied or collected if the beneficial owner of the relevant Security had been the Holder of such Security or (B) which, if the beneficial owner of such Security held the Security as the Holder of such Security, would have been excluded pursuant to clauses (i) through (v) inclusive above; or
(vii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge.
Section 1.2. The Successor Company to be Substituted for the Company
Pursuant to Section 9.2 of the Indenture and not in limitation of any other provisions thereof, upon execution of the Supplemental Indenture, the Successor Company shall succeed to and be substituted for the Company, with the same effect as if it had been named in the Indenture as the party of the first part and the Company shall be relieved of all obligations and covenants under the Indenture and the Securities.
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ARTICLE TWO
MISCELLANEOUS
Section 2.1. Definitions.
Except as otherwise expressly provided or unless the context otherwise requires, all terms used herein which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Section 2.2. Confirmation of the Indenture.
The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and the Indenture, this Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.
Section 2.3. Effective Date; Termination.
This Supplemental Indenture will take effect as of the date first set forth above.
Section 2.4. Governing Law.
This Supplemental Indenture shall be governed by and construed in accordance with the laws of the jurisdiction which governs the Indenture and its construction.
Section 2.5. Counterparts.
This Supplemental Indenture may be executed in any number of counterparts each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 2.6 Trustee
The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture. The recitals and statements are deemed to be those of the Company and the Successor Company and not of the Trustee.
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IN WITNESS WHEREOF,
the parties hereto have caused this Supplemental Indenture to be executed,
all as of the day and year first above written.
| Executed as a deed of Xxxxxx Building Materials Limited by two directors. | ||
| XXXXXX BUILDING MATERIALS LIMITED | ||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxxx | ||
| Title: Director | ||
| By: | /s/ Xxxxxxxx Xxxxxxxx | |
| Name: Xxxxxxxx Xxxxxxxx | ||
| Title: Director | ||
| Executed as a deed of Xxxxxx PLC by two directors. | ||
| XXXXXX PLC | ||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxxx | ||
| Title: Director | ||
| By: | /s/ Xxxxxxxx Xxxxxxxx | |
| Name: Xxxxxxxx Xxxxxxxx | ||
| Title: Director | ||
| THE BANK OF NEW YORK | ||
| By: | /s/ Xxxxxx Xxxxxxxx | |
| Name: Xxxxxx Xxxxxxxx | ||
| Title: Assistant Treasurer | ||
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