EXHIBIT 4.8
XXXXXXXXX-XXXX COMPANY LIMITED,
XXXXXXXXX-XXXX COMPANY,
AND
THE BANK OF NEW YORK,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of December 31, 2001
Supplementing and Amending the Indenture
Dated as of March 23, 1998
SECOND SUPPLEMENTAL INDENTURE, dated as of December 31,
2001, among Xxxxxxxxx-Xxxx Company Limited, a company organized
and existing under the laws of Bermuda ("IR-Limited"), Xxxxxxxxx-
Xxxx Company, a New Jersey corporation (the "Company"), and The
Bank of New York, as trustee (the "Trustee"). Terms not defined
herein shall have the meanings assigned to them in the Indenture.
RECITALS
WHEREAS, Company and the Trustee are parties to an
Indenture, dated as of March 23, 1998, as the same may be amended
or supplemented from time to time (the "Indenture"), providing
for the issuance from time to time of the Company's unsecured
debentures, notes or other evidences of indebtedness (herein and
therein called the "Securities"), to be issued in one or more
series as provided in the Indenture.
WHEREAS, on December 31, 2001 a newly formed subsidiary of
IR-Limited is expected to merge with and into the Company with
the Company being the surviving corporation in the merger (the
"Merger") and each outstanding share of common stock of the
Company will be converted into one share of Class A common stock
of IR-Limited.
WHEREAS, in connection with the Merger, IR-Limited desires
to guarantee all of the Company's obligations under the Indenture
and the Securities.
WHEREAS, Section 901 of the Indenture provides that the
Company, when authorized by a Board Resolution, and the Trustee
may enter into a supplemental indenture, without the consent of
any Holder, to make provisions with respect to matters arising
under the Indenture, provided that such action shall not
adversely affect the interests of the Holders of Securities of
any series in any material respect.
WHEREAS, the Company and the Trustee have determined that
this Second Supplemental Indenture complies with Section 901 of
the Indenture and does not require the consent of any Holders
and, on the basis of the foregoing, the Trustee has determined
that this Second Supplemental Indenture is in form satisfactory
to it.
W I T N E S S E T H :
NOW, THEREFORE, for and in consideration of the premises, it
is mutually covenanted and agreed, for the equal and ratable
benefit of the Holders, as follows:
ARTICLE 1
GUARANTEE OF OBLIGATIONS
SECTION 1.1 Guarantee. IR-Limited hereby irrevocably and
unconditionally guarantees to the Trustee and the Holders on and
after the Effective Date all of the obligations of the Company
under the Indenture and the Securities, including the punctual
payment when due, whether at stated maturity, by acceleration or
otherwise, of the principal of, premium, if any, and interest on
the Securities according to the terms of the Securities and as
more fully described in the Indenture. Notwithstanding the
foregoing, the Company shall remain obligated under the Indenture
and the Securities, in accordance with the terms of the
Indenture. "Effective Date" shall mean the close of business on
December 31, 2001, the date on which a certificate of merger,
reflecting the Merger and filed with the Treasurer of the State
of New Jersey, is expected to have become effective in accordance
with New Jersey law.
ARTICLE 2
REPORTS BY IR-LIMITED
SECTION 2.1. Reports. Section 704 of the Indenture is hereby
amended by deleting it in its entirety and substituting in place
thereof the following:
SECTION 704. REPORTS BY IR-LIMITED.
IR-Limited shall:
(1) file with the Trustee, within 15 days after
IR-Limited is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission
may from time to time by rules and regulations
prescribe) which IR-Limited may be required to file
with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if IR-Limited is not
required to file information, documents or reports
pursuant to either of said Sections, then it shall file
with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic
information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a
national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from
time to time by the Commission, such additional
information, documents and reports with respect to
compliance by IR-Limited with the conditions and
covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their
names and addresses appear in the Security Register,
(a) concurrently with furnishing the same to its
shareholders, IR-Limited's annual report to
shareholders, containing certified financial
statements, and any other financial reports which IR-
Limited generally furnishes to its shareholders, and
(b) within 30 days after the filing thereof with the
Trustee, such summaries of any other information,
documents and reports required to be filed by IR-
Limited pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations
prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information
contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officer's Certificates).
ARTICLE 3
CERTIFICATE OF COMPLIANCE
SECTION 2.1. Certificate of Compliance. Section 1003 of the
Indenture is hereby amended by deleting it in its entirety and
substituting in place thereof the following:
SECTION 1003. COMPLIANCE CERTIFICATES. IR-Limited
will deliver to the Trustee on or before May 15 in each
year ending after the date hereof, an Officer's
Certificate stating that in the course of the
performance by each signer of his duties as an officer
of IR-Limited he would normally have knowledge of any
default of the Company in the performance and
observance of any of the covenants contained in
Sections 1005 and 1006, stating whether or not he has
knowledge of any such default and, if so, specifying
each such default of which such signer has knowledge
and the nature thereof.
ARTICLE 4
GENERAL PROVISIONS
SECTION 4.1. Incorporation of Indenture. All the provisions
of this Second Supplemental Indenture shall be deemed to be
incorporated in, and made a part of, the Indenture; and the
Indenture, as supplemented and amended by this Second
Supplemental Indenture, shall be read, taken and construed as one
and the same instrument.
SECTION 4.2. Headings. The headings of the Articles and
Sections of this Second Supplemental Indenture are inserted for
convenience of reference and shall not be deemed to be a part
thereof.
SECTION 4.3. Counterparts. This Second Supplemental
Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
SECTION 4.4. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Second
Supplemental Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
SECTION 4.5. Successors. All covenants and agreements in
this Second Supplemental Indenture by the Company and IR-Limited
shall be binding upon and accrue to benefit of their respective
successors. All covenants and agreements in this Second
Supplemental Indenture by the Trustee shall be binding upon and
accrue to the benefit of its successors.
SECTION 4.6. Severability Clause. In case any provision in
this Second Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 4.7. Benefits of Second Supplemental Indenture.
Nothing in this Second Supplemental Indenture, express or
implied, shall give to any person, other than the parties hereto
and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Second
Supplemental Indenture.
SECTION 4.8. Governing Law. This Agreement and the
rights and duties of the parties hereunder shall be governed by,
and construed in accordance with, the law of the State of New
York without regard to any conflict of law principles thereof.
SECTION 4.9 Trustee Not Responsible for Recitals. The
Trustee makes no undertaking or representations in respect of,
and shall not be responsible in any manner whatsoever for and in
respect of, the validity or sufficiency of this Second
Supplemental Indenture or the proper authorizations or the due
execution hereof by the Company or for or in respect of the
recitals and statements contained herein, all of which recitals
and statements are made solely by the Company.
[signature page to follow]
IN WITNESS WHEREOF, the parties hereto have caused their
duly authorized officers to execute and deliver this Second
Supplemental Indenture, as of the date first above written.
Attest: XXXXXXXXX-XXXX COMPANY LIMITED
/S/_______________________ /S/________________________________
Name: By:
Title:
Attest:
/S/________________________
/S/_______________________________
Name: By:
Title:
Attest: XXXXXXXXX-XXXX COMPANY
/S/________________________ /S/________________________________
Name: By:
Title:
THE BANK OF NEW YORK, as Trustee
/S/________________________________
By:
Title:
