THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of June 22, 2006 (this “Supplemental
Indenture”), is between Xxxxxxxx Corporation, a New York corporation (the “Issuer”), and The
Bank of New York Trust Company, N.A., a national banking association duly organized and existing
under the laws of the United States, as trustee (the “Trustee”).
WITNESSETH
WHEREAS, pursuant to the Indenture, dated as of May 1, 1991, between the Issuer and the
Trustee, as successor 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 6.29% Notes due 2016 limited
initially to $290,753,000 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 “6.29% Notes Due 2016,” which shall be a series limited
initially to $290,753,000 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 Third 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: | /s/ Xxxxxxxx Xxxxx | |||
| Xxxxxxxx Xxxxx | ||||
| Vice President and Treasurer | ||||
| THE BANK OF NEW YORK TRUST COMPANY, N.A. |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Assistant Treasurer | |||
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Exhibit A
GLOBAL XXXXXXXX NOTE
| REGISTERED No. R-1 |
Principal Amount: $290,753,000 |
CUSIP: 382388 AR7
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
6.29% NOTES DUE 2016
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 $290,753,000, on July 1, 2016, and to pay interest
thereon semi-annually on January 1 and July 1 (the “Interest Payment Dates”) in each year,
commencing January 1, 2007, at the rate of 6.29 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 June 22, 2006; 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 June 22, 2006. Notwithstanding the foregoing, if the date hereof is after the December 15 or
June 15 (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 June 22, 2006. 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.
[The remainder of this page is left blank intentionally.]
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
| DATED: June 22, 2006 | XXXXXXXX CORPORATION |
|||
| By: | ||||
| Xxxxxxxx Xxxxx | ||||
| Vice President and Treasurer | ||||
| Attest: |
||||
| By: | ||||
| Xxxxx X. Xxxx | ||||
| 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 TRUST COMPANY, N.A., as Trustee |
||||
| By: | ||||
| Authorized Officer | ||||
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REVERSE OF SECURITY
XXXXXXXX CORPORATION
6.29% NOTES DUE 2016
6.29% NOTES DUE 2016
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 Trust Company, N.A., as successor trustee
(herein called the “Trustee”) and the Third Supplemental Indenture, dated as of June 22, 2006,
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 $290,753,000 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 25 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 the 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
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Quotations, or (ii) if the Trustee obtains fewer than four Reference Treasury Dealer
Quotations, the average of all Reference Treasury Deal Quotations.
“Reference Treasury Dealer” means (i) Banc of America Securities LLC, Deutsche Bank Securities
Inc., Calyon Securities (USA) Inc., Xxxxxx Xxxxxxx Corp. and Wachovia Capital Markets, LLC (or
their respective affiliates which are Primary Treasury Dealers(as defined below)) and the
respective successors of each of the foregoing; 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”), Xxxxxxxx will substitute another Primary Treasury Dealer; and (ii) any other Primary
Treasury Dealer selected by Xxxxxxxx.
“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
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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
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
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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
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.
The Holders of the Securities are entitled to the benefits of a Registration Rights Agreement,
dated June 22, 2006 between the Company and Banc of America Securities LLC, as the representative
for the several dealer managers, including the receipt of Special Interest upon a Registration
Default (as defined in such agreement). The Company shall make payments of Special Interest in
accordance with the provisions set forth herein for the payment of regular interest.
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 hereb
y sell(s), assign(s) and
transfers unto
[PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER OF ASSIGNEE]
TAX IDENTIFICATION NUMBER OF ASSIGNEE]
!
!
!
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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:
| NOTICE: |
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