WEATHERFORD INTERNATIONAL LTD., as Issuer WEATHERFORD INTERNATIONAL, INC., as Guarantor and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee FIRST SUPPLEMENTAL INDENTURE Dated as of March 25, 2008 To INDENTURE Dated as of October 1, 2003
EXHIBIT 4.1
▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD.,
as Issuer
▇▇▇▇▇▇▇▇▇▇▇
INTERNATIONAL, INC.,
as
Guarantor
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
Dated as of March 25, 2008
To
INDENTURE
Dated as
of October 1, 2003
5.15%
SENIOR NOTES DUE
2013
6.00% SENIOR NOTES DUE 2018
7.00% SENIOR NOTES DUE 2038
TABLE OF CONTENTS
| Page | ||||
ARTICLE 1 Relation to Indenture; Definitions |
1 | |||
SECTION 1.01. Relation to Indenture |
1 | |||
SECTION 1.02. Definitions |
1 | |||
SECTION 1.03. General References |
1 | |||
ARTICLE 2 The Series of Securities |
1 | |||
SECTION 2.01. The Form and Title of the Securities |
1 | |||
SECTION 2.02. Amount |
2 | |||
SECTION 2.03. Stated Maturity and Denominations |
2 | |||
SECTION 2.04. Interest and Interest Rates |
2 | |||
SECTION 2.05. Place of Payment |
2 | |||
SECTION 2.06. Optional Redemption |
2 | |||
SECTION 2.07. Unconditional Guarantee |
2 | |||
ARTICLE 3 Other Amendments to Indenture |
3 | |||
SECTION 3.01. Amendments to Indenture |
3 | |||
ARTICLE 4 Miscellaneous |
6 | |||
SECTION 4.01. Certain Trustee Matters |
6 | |||
SECTION 4.02. Continued Effect |
6 | |||
SECTION 4.03. Governing Law |
6 | |||
SECTION 4.04. Counterparts |
7 | |||
| EXHIBIT | ||||
Exhibit A:
|
Form of 2013 Note | |||
| Form of 2018 Note | ||||
| Form of 2038 Note | ||||
Exhibit B:
|
Form of Guarantee Notation |
FIRST SUPPLEMENTAL INDENTURE dated as of March 25, 2008 (this “First Supplemental Indenture”),
among ▇▇▇▇▇▇▇▇▇▇▇ International Ltd., a Bermuda exempted company (the “Company”),
▇▇▇▇▇▇▇▇▇▇▇ International, Inc., a corporation duly organized and existing under the laws
of the State of Delaware (the “Guarantor”), and Deutsche Bank Trust Company Americas, a
New York banking corporation, as trustee under the Indenture referred to below (in such capacity,
the “Trustee”).
RECITALS OF THE COMPANY
WHEREAS, the Company, the Guarantor and the Trustee are parties to an Indenture dated as of
October 1, 2003 (the “Original Indenture”) (the Original Indenture, as supplemented from time to
time, including without limitation pursuant to this First Supplemental Indenture being referred to
herein as the “Indenture”); and
WHEREAS, under the Original Indenture, a new series of Securities may at any time be
established in accordance with the provisions of the Original Indenture, and the terms of such
series may be established by a supplemental indenture executed by the Company, the Guarantor and
the Trustee; and
WHEREAS, the Company and the Guarantor propose to create under the Indenture three new series
of Securities, which will be guaranteed by the Guarantor pursuant to its Guarantees as set forth in
Article Fourteen of the Original Indenture (as made applicable to the Notes, defined herein,
pursuant to this First Supplemental Indenture); and
WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee as provided in the Original Indenture and this First
Supplemental Indenture, the valid and binding obligations of the Company, to make the Guarantees of
such Notes by the Guarantor the valid and binding obligation of the Guarantor, and to make this
First Supplemental Indenture a valid and binding agreement in accordance with the Original
Indenture, have been done or performed;
NOW, THEREFORE, in consideration of the premises, agreements and obligations set forth herein
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree, for the equal and proportionate benefit of all
Holders of the Notes, as follows:
ARTICLE 1
Relation to Indenture; Definitions
Relation to Indenture; Definitions
SECTION 1.01. Relation to Indenture.
With respect to the Notes and the Guarantees thereof by the Guarantor, this First Supplemental
Indenture constitutes an integral part of the Indenture.
SECTION 1.02. Definitions.
For all purposes of this First Supplemental Indenture, capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned thereto in the Original Indenture.
SECTION 1.03. General References.
All references in this First Supplemental Indenture to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this First Supplemental Indenture;
and the terms “herein”, “hereof”, “hereunder” and any other word of similar import refers to this
First Supplemental Indenture.
ARTICLE 2
The Series of Securities
The Series of Securities
SECTION 2.01. The Form and Title of the Securities.
There is hereby established three new series of Securities to be issued under the Indenture
and to be designated as the Company’s 5.15% Senior Notes due 2013 (the “2013 Notes”), the Company’s
6.00% Senior Notes due 2018 (the “2018 Notes”) and the Company’s 7.00% Senior Notes due 2038 (the
“2038 Notes” and collectively
First Supplemental Indenture
with the 2013 Notes and the 2018 Notes, the “Notes”). The Notes shall be substantially in the
forms attached as Exhibit A hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by the Indenture, and
may have such letters, numbers or other marks of identification and such legends or endorsements
placed thereon as the Company may deem appropriate or as may be required or appropriate to comply
with any laws or with any rules made pursuant thereto or with the rules of any securities exchange
or automated quotation system on which the Notes may be listed or traded, or to conform to general
usage, or as may, consistently with the Indenture, be determined by the officers executing such
Notes, as evidenced by their execution thereof.
The Notes shall be executed, authenticated and delivered in accordance with the provisions of,
and shall in all respects be subject to, the terms, conditions and covenants of the Original
Indenture as supplemented by this First Supplemental Indenture (including the forms of Note set
forth as Exhibit A hereto (the terms of which are incorporated in and made a part of this
First Supplemental Indenture for all intents and purposes)).
SECTION 2.02. Amount.
The aggregate principal amount of the Notes which may be authenticated and delivered pursuant
hereto is unlimited. The Trustee shall initially authenticate and deliver Notes for original issue
in initial aggregate principal amounts of up to $500,000,000 of the 2013 Notes, up to $500,000,000
of the 2018 Notes and up to $500,000,000 of the 2038 Notes upon delivery to the Trustee of a
Company Order for the authentication and delivery of such Notes. The Company may, from time to
time, without notice to or the consent of the Holders of the Notes, increase the principal amount
of the Notes under the Indenture and issue such increased principal amount (or any portion
thereof), in which case any additional Notes so issued will have the same form and terms (other
than the date of issuance and, under certain circumstances, the date from which interest thereon
will begin to accrue), and will carry the same right to receive accrued and unpaid interest, as the
Notes previously issued, and such additional Notes will form a single series with the Notes
previously issued.
SECTION 2.03. Stated Maturity and Denominations.
The Stated Maturity of the 2013 Notes shall be March 15, 2013, of the 2018 Notes shall be
March 15, 2018 and of the 2038 Notes shall be March 15, 2038. The Notes are issuable only in
registered form without coupons in denominations of U.S. $2,000 and any integral multiple of $1,000
in excess thereof.
SECTION 2.04. Interest and Interest Rates.
The rate or rates at which the Notes shall bear interest, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any interest payable on any Interest Payment Date, in each case, shall
be as set forth in the form of applicable Note set forth as Exhibit A hereto.
SECTION 2.05. Place of Payment.
As long as any Notes are outstanding, the Company shall maintain an office or agency in the
Borough of Manhattan, The City of New York, where Notes may be presented for payment.
SECTION 2.06. Optional Redemption.
At its option, the Company may redeem any series of Notes, in whole or in part, in principal
amounts of $2,000 or an integral multiple of $1,000 in excess thereof, at any time or from time to
time, at the applicable redemption price determined as set forth in the form of applicable Note
attached hereto as Exhibit A, in accordance with the terms set forth in the Note and in
accordance with Article Eleven of the Original Indenture.
SECTION 2.07. Unconditional Guarantee.
Article Fourteen of the Original Indenture (as amended and supplemented by this First
Supplemental Indenture) shall be applicable to the Notes, and accordingly, as more fully set forth
in such Article Fourteen, the Guarantor fully, irrevocably, unconditionally and absolutely
guarantees to the Holders of Notes and to the Trustee the due and punctual payment of the principal
of, and premium, if any, and interest on the Notes, and all other
First Supplemental Indenture
2
Indenture Obligations, when and as the same shall become due and payable, whether at the
Stated Maturity, upon redemption or by declaration of acceleration or otherwise.
To further evidence the Guarantees of the Notes, the Guarantor hereby agrees that a notation
of such Guarantees in substantially in the form attached as Exhibit B hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by the Indenture, shall be endorsed on each Note authenticated and delivered by the
Trustee and executed by either manual or facsimile signature of an officer of the Guarantor. The
Guarantor hereby agrees that its Guarantees of the Notes shall remain in full force and effect
notwithstanding any failure to endorse on any such Notes a notation relating to the Guarantees
thereof.
ARTICLE 3
Other Amendments to Indenture
Other Amendments to Indenture
SECTION 3.01. Amendments to Indenture
The amendments contained in this Section 3.01 shall apply to the Notes only and not to any
other series of Securities issued under the Indenture. Such amendments shall be effective only for
so long as there remain outstanding any Notes. The Original Indenture is hereby amended, subject
to the preamble of this Section 3.01 and with respect to the Notes only, by adding the following as
a new Section 10.10 thereto:
Section 10.10 Change of Control Repurchase at the Option of Holders
(a) Upon the occurrence of a Change of Control Triggering Event, Holders of
Securities will have the right to require the Company to make an offer (the “Change
of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of their Securities at a purchase price in
cash equal to 101% of the aggregate principal amount of Securities repurchased plus
accrued and unpaid interest, if any, on the Securities repurchased, to the date of
purchase (the “Change of Control Payment”). Within 30 days following any Change of
Control Triggering Event, the Company will mail a notice to each Holder of
Securities describing the transaction or transactions that constitute the Change of
Control Triggering Event and stating:
(1) that the Change of Control Offer is being made pursuant to this
Section 10.10 and that all Securities tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no earlier
than 30 days and no later than 60 days from the date such notice is mailed
(the “Change of Control Payment Date”);
(3) that any Securities not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Securities accepted for payment pursuant to the Change
of Control Offer will cease to accrue interest after the Change of Control
Payment Date;
(5) that Holders electing to have any Securities repurchased pursuant
to a Change of Control Offer will be required to surrender the Securities,
with the form entitled “Option of Holder to Elect Purchase” attached to the
Securities completed, or transfer by book-entry transfer, to the Paying
Agent at the address specified in the notice prior to the close of business
on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile, transmission or letter setting forth the name of the
Holder, the principal amount of Securities delivered for purchase, and a
statement that such Holder is withdrawing his election to have the
Securities purchased; and
First Supplemental Indenture
3
(7) that Holders whose Securities are being purchased only in part will
be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered, which unpurchased portion must be
equal to $2,000 in principal amount or in any integral multiple of $1,000 in
excess thereof.
The Company will comply with the requirements of Rule 14e-1 under the Exchange
Act, and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control Triggering Event. To the extent that
the provisions of any securities laws or regulations conflict with the provisions of
this Section 10.10 (or compliance with this Section 10.10 would constitute a
violation of any such laws or regulations), the Company will comply with the
applicable securities laws and regulations and will not be deemed to have breached
its obligations under this Section 10.10 by virtue of such conflicts.
(b) On or before the Change of Control Payment Date, the Company will be
required, to the extent lawful, to:
(1) accept for payment all Securities or portions of Securities
properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Securities or portions of Securities
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Securities
properly accepted.
The Paying Agent will promptly (but in any case not later than five days after
the Change of Control Payment Date) mail to each Holder of Securities properly
tendered the Change of Control Payment for such Securities, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to each
Holder a new Security equal in principal amount to any unpurchased portion of the
Securities surrendered, if any; provided that each new Security will be in a
principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The
Company will publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.
If Holders of not less than 95% in aggregate principal amount of a series of
outstanding Securities validly tender and do not withdraw such Securities in a
Change of Control Offer and the Company, or any third party making a Change of
Control Offer in lieu of the Company as described below, purchases all of such
Securities validly tendered and not withdrawn by such Holders, the Company will have
the right, upon not less than 30 nor more than 60 days’ prior notice, given not more
than 30 days following such purchase pursuant to the Change of Control Offer
described above, to redeem such Securities that remain outstanding following such
purchase at a redemption price in cash equal to the applicable Change of Control
Payment plus, to the extent not included in the Change of Control Payment, accrued
and unpaid interest, if any, to the date of redemption.
(d) Notwithstanding anything to the contrary in this Section 10.10, the Company
will not be required to make a Change of Control Offer with respect to a series of
Securities upon a Change of Control Triggering Event if (1) a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with
the requirements set forth in this Section 10.10 and purchases all Securities
properly tendered and not withdrawn under the Change of Control Offer, or (2) notice
of redemption has been given pursuant to Section 11.4 with respect to a redemption
of all such Securities then outstanding pursuant to Article Eleven, unless and until
there is a default in payment of the applicable redemption price.
(e) For purposes of this Section 10.10, the following definitions shall be
applicable:
First Supplemental Indenture
4
(1) “Below Investment Grade Rating Event” means, with respect to a
series of Securities, the Securities are rated below an Investment Grade
Rating by each of the Rating Agencies on any date from the date of the
public notice of an arrangement that could result in a Change of Control
until the end of the 60-day period following public notice of the occurrence
of the Change of Control (which 60-day period shall be extended so long as
the rating of the Securities is under publicly announced consideration for
possible downgrade by either of the Rating Agencies).
(2) “Change of Control” means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other disposition
(other than by way of merger, amalgamation or consolidation of the Company),
in one or a series of related transactions, of all or substantially all of
the properties or assets of the Company and its Subsidiaries taken as a
whole to any person (as such term is used in Section 13(d) of the Exchange
Act) other than the Company or one of its Subsidiaries or a Person
controlled by the Company or one of its Subsidiaries; (2) the consummation
of any transaction (including, without limitation, any merger, amalgamation
or consolidation) the result of which is that any person (as such term is
used in Section 13(d) of the Exchange Act) becomes the beneficial owner,
directly or indirectly, of more than 50% of the then outstanding number of
the Company’s voting shares (excluding a Redomestication of the Company); or
(3) the first day on which a majority of the members of the Company’s Board
of Directors are not Continuing Directors.
(3) “Change of Control Triggering Event” means the occurrence of both a
Change of Control and a Below Investment Grade Rating Event.
(4) “Continuing Directors” means, as of any date of determination, any
member of the Board of Directors of the Company who (1) was a member of such
Board of Directors on the date of the issuance of the Securities; or (2) was
nominated for election or appointed or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were members
of such Board of Directors at the time of such nomination, appointment or
election (either by a specific vote or by approval of the Company’s proxy
statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
(5) “Investment Grade Rating” means a rating equal to or higher than
Baa3 (or the equivalent under any successor ratings categories of Moody’s)
by Moody’s and BBB- (or the equivalent under any successor ratings
categories of S&P) by S&P.
(6) “Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc.
(7) “Rating Agencies” means (1) each of Moody’s and S&P; and (2) if
either of Moody’s or S&P ceases to rate the Securities or fails to make a
rating of the Securities publicly available for reasons outside of the
Company’s control, a “nationally recognized statistical rating organization”
within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act,
selected by the Company (as certified by a resolution of the Company’s Board
of Directors) as a replacement agency for Moody’s or S&P, or both of them,
as the case may be.
(8) “Redomestication” means:
(a) any amalgamation, merger, conversion or consolidation of the Company with
or into any other person (as such term is used in Section 13(d) of the Exchange
Act), or of any other person (as such term is used in Section 13(d) of the Exchange
Act) with or into the Company, or the sale or other disposition (other than by
lease) of all or substantially all of the properties or assets of the Company and
its Subsidiaries taken as a whole to any other person (as such term is used in
Section 13(d) of the Exchange Act),
First Supplemental Indenture
5
(b) any continuation, discontinuation, amalgamation, merger, conversion,
consolidation or domestication or similar action with respect to the Company
pursuant to the law of the jurisdiction of its organization and of any other
jurisdiction, or
(c) the formation of a Person that becomes, as part of the transaction, the
owner of 100% of the voting shares of the Company (the “New Parent”),
if as a result thereof
(x) in the case of any action specified in clause (a), the entity that
is the surviving, resulting or continuing Person in such merger,
amalgamation, conversion or consolidation, or the transferee in such sale or
other disposition,
(y) in the case of any action specified in clause (b), the entity that
constituted the Company immediately prior thereto (but disregarding for this
purpose any change in its jurisdiction of organization), or
(z) in the case of any action specified in clause (c), the New
Parent (in any such case, the “Surviving Person”) is a corporation or other entity,
validly incorporated or formed and existing in good standing (to the extent
the concept of good standing is applicable) under the laws of Delaware or
another State of the United States or under the laws of the United Kingdom,
The Kingdom of the Netherlands or under the laws of any other jurisdiction,
whose voting shares of each class of capital stock issued and outstanding
immediately following such action, and giving effect thereto, shall be
beneficially owned by the same Persons, in the same percentages, as was such
capital stock or shares of the entity constituting the Company immediately
prior thereto and, if the Surviving Person is the New Parent, the Surviving
Person continues to be owned, directly or indirectly, 100% by Persons who
were shareholders of the Company immediately prior to such transaction.
(9) “S&P” means Standard & Poor’s Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
ARTICLE 4
Miscellaneous
Miscellaneous
SECTION 4.01. Certain Trustee Matters.
The recitals contained herein shall be taken as the statements of the Company and the
Guarantor, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this First
Supplemental Indenture or the Notes or the proper authorization or the due execution hereof or
thereof by the Company.
SECTION 4.02. Continued Effect.
Except as expressly supplemented and amended by this First Supplemental Indenture, the
Original Indenture shall continue in full force and effect in accordance with the provisions
thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This First
Supplemental Indenture and all of its provisions shall be deemed a part of the Original Indenture
in the manner and to the extent herein and therein provided.
SECTION 4.03. Governing Law.
This First Supplemental Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
First Supplemental Indenture
6
SECTION 4.04. Counterparts.
This instrument may be executed in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute but one and the same
instrument.
(Signature Pages Follow)
First Supplemental Indenture
7
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed and delivered, all as of the day and year first above written.
| ▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD. | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ||||||
| Title: |
Senior Vice President and Corporate Secretary | |||||
| ▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL, INC., | ||||||
| as Guarantor | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ||||||
| Title: | Senior Vice President | |||||
First Supplemental Indenture
| DEUTSCHE BANK TRUST COMPANY AMERICAS, by Deutsche Bank National Trust Company, as Trustee |
||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Assistant Vice President | |||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
EXHIBIT A
Form of 2013 Note
Form of 2013 Note
[FORM OF FACE OF NOTE]
[If a Global Security, insert—THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If a Global Security, insert—EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF
TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO
THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[If a Global Security, insert—UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (“DTC”) (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO., OR 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.]
First Supplemental Indenture
A-1-1
▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD.
5.15% Senior Note due 2013
| Rate of Interest | Maturity Date | Original Issue Date | ||
| 5.15% | March 15, 2013 | March 25, 2008 |
| ▇▇. ▇ | ▇.▇.▇▇▇▇,▇▇▇,▇▇▇ | |
| ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ AC1 |
▇▇▇▇▇▇▇▇▇▇▇ International Ltd., a Bermuda exempted company (herein called the “Company”), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of
FIVE HUNDRED MILLION United States Dollars on the maturity date shown above, and to pay interest
thereon, at the annual rate of interest shown above, from the original issue date shown above or
from the most recent Interest Payment Date (as hereinafter defined) to which interest has been paid
or duly provided for, payable semi-annually on March 15 and September 15 of each year (each, an
"Interest Payment Date”) and at such maturity date, commencing on the first such date after the
original issue date hereof, except that if such original issue date is on or after a Regular Record
Date (as defined below) but before the next Interest Payment Date, interest payments will commence
on the second Interest Payment Date following the original issue date.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the person in whose name this Note is
registered at the close of business on the “Regular Record Date” for any such Interest Payment
Date, which shall be the fourteenth calendar day (whether or not a Business Day) preceding the
applicable Interest Payment Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent lawful), will forthwith cease to
be payable to the Holder on such Regular Record Date and shall be paid to the person in whose name
this Note is registered at the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company, notice of which shall be given to Holders of Notes
not less than 14 days prior to such special record date. Payment of the principal of and interest
on this Note will be made at the agency of the Company maintained for that purpose in New York, New
York and at any other office or agency maintained by the Company for such purpose, in United States
dollars; provided, however, that, at the option of the Company, payment of interest, other than
interest due on the maturity date shown above, 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 Note 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 Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
(Signature Page Follows)
First Supplemental Indenture
A-1-2
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇▇▇▇ International Ltd. has caused this instrument to be executed
in its corporate name by the signature of its duly authorized officer.
| ▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
DATED: March 25, 2008
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the 5.15% Senior Notes due 2013 referred to in the within-mentioned Indenture.
| DEUTSCHE BANK TRUST COMPANY AMERICAS, by Deutsche Bank National Trust Company, as Trustee |
||||
| By: | ||||
| Authorized Signatory | ||||
| By: | ||||
| Authorized Signatory | ||||
First Supplemental Indenture
A-1-3
[REVERSE OF NOTE]
▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD.
5.15% Senior Note due 2013
5.15% Senior Note due 2013
This Note is one of a duly authorized issue of Securities of the Company (which term includes
any successor corporation under the Indenture hereinafter referred to) designated as its 5.15%
Senior Notes due 2013 (the “Notes”), issued or to be issued pursuant to an Indenture dated as of
October 1, 2003, between the Company and Deutsche Bank Trust Company Americas, a New York banking
corporation, as Trustee (the “Trustee,” which term includes any successor trustee under such
Indenture), as amended and supplemented by the First Supplemental Indenture thereto dated as of
March 25, 2008 (such Indenture, as so amended and supplemented being referred to herein as the
“Indenture”). The terms of this Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended. Reference is hereby
made to the Indenture and all further supplemental indentures thereto for a statement of the
respective rights, limitation of rights, duties and immunities thereunder of the Company, the
Guarantor, the Trustee and the Holders and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
As provided in the Indenture, Securities may be issued in one or more series, which different
series 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, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Note is one of the series designated on the face hereof.
This Note is the general, unsecured, senior obligation of the Company and is guaranteed
pursuant to a guarantee (the “Guarantee”) by ▇▇▇▇▇▇▇▇▇▇▇ International, Inc., a Delaware
corporation (the “Guarantor”).
The Notes are subject to redemption upon not less than 30 nor more than 60 days’ notice by
mail, at any time, as a whole or in part, at the election of the Company at a Redemption Price
equal to the greater of: (a) 100% of the principal amount of Securities then outstanding to be
redeemed, plus accrued and unpaid interest thereon to the redemption date; or (b) the sum of the
present values of the remaining scheduled payments of principal and interest on the Securities then
outstanding to be redeemed (not including any portion of such payments of interest accrued as of
the redemption date), discounted to the redemption date on a semi-annual basis (computed based on a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus 45 basis
points (0.45%), as calculated by an Independent Investment Banker, plus accrued and unpaid interest
thereon to the redemption date; but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
“Adjusted Treasury Rate” means, with respect to any redemption date: (a) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the remaining life, as defined below,
yields for the two published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Adjusted Treasury Rate will be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month); or (b) if such release (or any
successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using 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 Adjusted Treasury Rate will be calculated on the third business day preceding the
redemption date.
“Comparable Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, 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.
First Supplemental Indenture
A-1-4
“Comparable Treasury Price” means (1) the average of five Reference Treasury Dealer Quotations
for the redemption date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if an Independent Investment Banker obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
“Independent Investment Banker” means ▇▇▇▇▇▇▇, Sachs & Co., Deutsche Bank Securities Inc. or
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated or any of their respective successors, as
designated by us, or if all such firms are unwilling or unable to serve as such, an independent
investment and banking institution of national standing appointed by the Company.
“Reference Treasury Dealer” means: (a) ▇▇▇▇▇▇▇, Sachs & Co., Deutsche Bank Securities Inc. and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and each of their respective successors;
provided that, if any such Reference Treasury Dealer ceases to be a primary U.S. Government
securities dealer in the United States (Primary Treasury Dealer), the Company will substitute
another Primary Treasury Dealer; and (b) up to two other Primary Treasury Dealer selected by the
Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by an Independent Investment Banker, 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 an Independent Investment Banker at 3:00 p.m., New York City
time, on the third business day preceding such redemption date.
In the event of redemption of this Note in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantor 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 Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note 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 Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Note at the times, place(s) and rate, and
in the coin or currency, herein prescribed.
This Global Security or portion hereof may not be exchanged for Definitive Securities of this
series except in the limited circumstances provided in the Indenture. The holders of beneficial
interests in this Global Security will not be entitled to receive physical delivery of Definitive
Securities except as described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.
The Notes are issuable only in registered form without coupons in denominations of U.S. $2,000
and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, 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 Note for registration of transfer, the Company, the Trustee
and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this
Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and
none of the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to
the contrary.
First Supplemental Indenture
A-1-5
No recourse under or upon any obligation, covenant or agreement of or contained in the
Indenture or of or contained in any Note, or the Guarantee endorsed thereon, or for any claim based
thereon or otherwise in respect thereof, or in any Security or in the Guarantee, or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, member, officer, manager or director, as such, past, present or future, of the Company
or the Guarantor or of any successor Person, either directly or through the Company or the
Guarantor or any successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment, penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released by the acceptance hereof and as a
condition of, and as part of the consideration for, the Notes and the execution of the Indenture.
The Indenture provides that the Company and the Guarantor (a) will be discharged from any and
all obligations in respect of the Notes (except for certain obligations described in the
Indenture), or (b) need not comply with certain restrictive covenants of the Indenture, in each
case if the Company or the Guarantor deposits, in trust, with the Trustee money or U.S. Government
Obligations (or a combination thereof) which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, in an amount sufficient to pay all the
principal of and interest on the Notes, but such money need not be segregated from other funds
except to the extent required by law.
As more fully provided in the Indenture, no Holder may pursue any remedy under the Indenture
unless the Trustee shall have failed to act after notice of an Event of Default and written request
by Holders of at least 25% in principal amount of a series of the Securities and the offer to the
Trustee of indemnity satisfactory to it; however, such provision does not affect the right to ▇▇▇
for enforcement of any overdue payment on any Security.
Except as otherwise defined herein, all terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a Holder or any assignee, such as: TEN COM
( = tenants in common), TEN ENT ( = tenants by the entireties), JT TEN ( = joint tenants with right
of survivorship and not as tenants in common), CUST ( = Custodian) and U/G/M/A ( = Uniform Gifts to
Minors Act).
The Company will furnish to any holder of record of this Note, upon written request, without
charge, a copy of the Indenture. Requests may be made to: ▇▇▇▇▇▇▇▇▇▇▇ International Ltd., ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary.
This Note shall be governed by and construed in accordance with the laws of the State of New
York without regard to principles of conflicts of law.
First Supplemental Indenture
A-1-6
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee) the within
instrument of ▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD. and does hereby irrevocably constitute and appoint
Attorney to transfer said instrument on the books of the within-named
Company, with full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
Other Identifying Number of Assignee:
Dated: |
||||
| (Signature) | ||||
Signature Guarantee: |
||
(Participant in a
Recognized Signature
Guaranty Medallion Program)
NOTICE: The signature to this assignment must correspond with the name as written upon the
face of the within instrument in every particular, without alteration or enlargement or any change
whatever.
First Supplemental Indenture
A-1-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10.10 or
11.6 of the Indenture, check the appropriate box below:
| o Section 10.10 | o Section 11.6 |
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 10.10 or Section 11.6 of the Indenture, state the amount you elect to have purchased:
$
Date:
| Your Signature: | ||||
| (Sign exactly as your name appears on the face of this Note) | ||||
| Tax Identification No.: | ||||
Signature Guarantee*:
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
First Supplemental Indenture
A-1-8
[If a Global Security, insert as a separate page—
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
| Amount of | Principal Amount of | |||||||
| Decrease in | Amount of Increase | this Global Security | Signature of | |||||
| Principal | in Principal Amount | following such | authorized signatory | |||||
| Amount of this | of this | decrease | of Trustee or | |||||
| Date of Exchange | Global Security | Global Security | (or increase) | Depositary | ||||
First Supplemental Indenture
A-1-9
EXHIBIT A
Form of 2018 Note
Form of 2018 Note
[FORM OF FACE OF NOTE]
[If a Global Security, insert—THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If a Global Security, insert—EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF
TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO
THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[If a Global Security, insert—UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (“DTC”) (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO., OR 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.]
First Supplemental Indenture
A-2-1
▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD.
6.00% Senior Note due 2018
| Rate of Interest | Maturity Date | Original Issue Date | ||||||
6.00% |
March 15, 2018 | March 25, 2008 | ||||||
| No. 1 | U.S.$500,000,000 |
CUSIP No. 947075 ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ International Ltd., a Bermuda exempted company (herein called the “Company”), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of
FIVE HUNDRED MILLION United States Dollars on the maturity date shown above, and to pay interest
thereon, at the annual rate of interest shown above, from the original issue date shown above or
from the most recent Interest Payment Date (as hereinafter defined) to which interest has been paid
or duly provided for, payable semi-annually on March 15 and September 15 of each year (each, an
"Interest Payment Date”) and at such maturity date, commencing on the first such date after the
original issue date hereof, except that if such original issue date is on or after a Regular Record
Date (as defined below) but before the next Interest Payment Date, interest payments will commence
on the second Interest Payment Date following the original issue date.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the person in whose name this Note is
registered at the close of business on the “Regular Record Date” for any such Interest Payment
Date, which shall be the fourteenth calendar day (whether or not a Business Day) preceding the
applicable Interest Payment Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent lawful), will forthwith cease to
be payable to the Holder on such Regular Record Date and shall be paid to the person in whose name
this Note is registered at the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company, notice of which shall be given to Holders of Notes
not less than 14 days prior to such special record date. Payment of the principal of and interest
on this Note will be made at the agency of the Company maintained for that purpose in New York, New
York and at any other office or agency maintained by the Company for such purpose, in United States
dollars; provided, however, that, at the option of the Company, payment of interest, other than
interest due on the maturity date shown above, 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 Note 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 Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
(Signature Page Follows)
First Supplemental Indenture
A-2-2
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇▇▇▇ International Ltd. has caused this instrument to be executed
in its corporate name by the signature of its duly authorized officer.
▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD.
| By: | ||||
| Name: | ||||
| Title: | ||||
DATED: March 25, 2008
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the 6.00% Senior Notes due 2018 referred to in the within-mentioned Indenture.
| DEUTSCHE BANK TRUST COMPANY AMERICAS, | ||||
| by Deutsche Bank National Trust Company, | ||||
| as Trustee | ||||
| By: | ||||
| Authorized Signatory | ||||
| By: | ||||
| Authorized Signatory | ||||
First Supplemental Indenture
A-2-3
[REVERSE OF NOTE]
▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD.
6.00% Senior Note due 2018
This Note is one of a duly authorized issue of Securities of the Company (which term includes
any successor corporation under the Indenture hereinafter referred to) designated as its 6.00%
Senior Notes due 2018 (the “Notes”), issued or to be issued pursuant to an Indenture dated as of
October 1, 2003, between the Company and Deutsche Bank Trust Company Americas, a New York banking
corporation, as Trustee (the “Trustee,” which term includes any successor trustee under such
Indenture), as amended and supplemented by the First Supplemental Indenture thereto dated as of
March 25, 2008 (such Indenture, as so amended and supplemented being referred to herein as the
“Indenture”). The terms of this Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended. Reference is hereby
made to the Indenture and all further supplemental indentures thereto for a statement of the
respective rights, limitation of rights, duties and immunities thereunder of the Company, the
Guarantor, the Trustee and the Holders and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
As provided in the Indenture, Securities may be issued in one or more series, which different
series 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, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Note is one of the series designated on the face hereof.
This Note is the general, unsecured, senior obligation of the Company and is guaranteed
pursuant to a guarantee (the “Guarantee”) by ▇▇▇▇▇▇▇▇▇▇▇ International, Inc., a Delaware
corporation (the “Guarantor”).
The Notes are subject to redemption upon not less than 30 nor more than 60 days’ notice by
mail, at any time, as a whole or in part, at the election of the Company at a Redemption Price
equal to the greater of: (a) 100% of the principal amount of Securities then outstanding to be
redeemed, plus accrued and unpaid interest thereon to the redemption date; or (b) the sum of the
present values of the remaining scheduled payments of principal and interest on the Securities then
outstanding to be redeemed (not including any portion of such payments of interest accrued as of
the redemption date), discounted to the redemption date on a semi-annual basis (computed based on a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus 40 basis
points (0.40%), as calculated by an Independent Investment Banker, plus accrued and unpaid interest
thereon to the redemption date; but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
“Adjusted Treasury Rate” means, with respect to any redemption date: (a) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the remaining life, as defined below,
yields for the two published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Adjusted Treasury Rate will be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month); or (b) if such release (or any
successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using 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 Adjusted Treasury Rate will be calculated on the third business day preceding the
redemption date.
“Comparable Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, 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.
First Supplemental Indenture
A-2-4
“Comparable Treasury Price” means (1) the average of five Reference Treasury Dealer Quotations
for the redemption date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if an Independent Investment Banker obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
“Independent Investment Banker” means ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., Deutsche Bank Securities Inc. or
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated or any of their respective successors, as
designated by us, or if all such firms are unwilling or unable to serve as such, an independent
investment and banking institution of national standing appointed by the Company.
“Reference Treasury Dealer” means: (a) ▇▇▇▇▇▇▇, Sachs & Co., Deutsche Bank Securities Inc. and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and each of their respective successors;
provided that, if any such Reference Treasury Dealer ceases to be a primary U.S. Government
securities dealer in the United States (Primary Treasury Dealer), the Company will substitute
another Primary Treasury Dealer; and (b) up to two other Primary Treasury Dealer selected by the
Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by an Independent Investment Banker, 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 an Independent Investment Banker at 3:00 p.m., New York City
time, on the third business day preceding such redemption date.
In the event of redemption of this Note in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantor 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 Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note 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 Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Note at the times, place(s) and rate, and
in the coin or currency, herein prescribed.
This Global Security or portion hereof may not be exchanged for Definitive Securities of this
series except in the limited circumstances provided in the Indenture. The holders of beneficial
interests in this Global Security will not be entitled to receive physical delivery of Definitive
Securities except as described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.
The Notes are issuable only in registered form without coupons in denominations of U.S. $2,000
and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, 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 Note for registration of transfer, the Company, the Trustee
and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this
Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and
none of the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to
the contrary.
First Supplemental Indenture
A-2-5
No recourse under or upon any obligation, covenant or agreement of or contained in the
Indenture or of or contained in any Note, or the Guarantee endorsed thereon, or for any claim based
thereon or otherwise in respect thereof, or in any Security or in the Guarantee, or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, member, officer, manager or director, as such, past, present or future, of the Company
or the Guarantor or of any successor Person, either directly or through the Company or the
Guarantor or any successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment, penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released by the acceptance hereof and as a
condition of, and as part of the consideration for, the Notes and the execution of the Indenture.
The Indenture provides that the Company and the Guarantor (a) will be discharged from any and
all obligations in respect of the Notes (except for certain obligations described in the
Indenture), or (b) need not comply with certain restrictive covenants of the Indenture, in each
case if the Company or the Guarantor deposits, in trust, with the Trustee money or U.S. Government
Obligations (or a combination thereof) which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, in an amount sufficient to pay all the
principal of and interest on the Notes, but such money need not be segregated from other funds
except to the extent required by law.
As more fully provided in the Indenture, no Holder may pursue any remedy under the Indenture
unless the Trustee shall have failed to act after notice of an Event of Default and written request
by Holders of at least 25% in principal amount of a series of the Securities and the offer to the
Trustee of indemnity satisfactory to it; however, such provision does not affect the right to ▇▇▇
for enforcement of any overdue payment on any Security.
Except as otherwise defined herein, all terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a Holder or any assignee, such as: TEN COM
( = tenants in common), TEN ENT ( = tenants by the entireties), JT TEN ( = joint tenants with right
of survivorship and not as tenants in common), CUST ( = Custodian) and U/G/M/A ( = Uniform Gifts to
Minors Act).
The Company will furnish to any holder of record of this Note, upon written request, without
charge, a copy of the Indenture. Requests may be made to: ▇▇▇▇▇▇▇▇▇▇▇ International Ltd., ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary.
This Note shall be governed by and construed in accordance with the laws of the State of New
York without regard to principles of conflicts of law.
First Supplemental Indenture
A-2-6
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee) the
within instrument of ▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD. and does hereby irrevocably constitute and
appoint Attorney to transfer said instrument on the books of the
within-named Company, with full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
Other Identifying Number of Assignee:
Dated: |
||||||||
| (Signature) | ||||||||
Signature Guarantee: |
||
| (Participant in a Recognized Signature Guaranty Medallion Program) |
NOTICE: The signature to this assignment must correspond with the name as written upon the
face of the within instrument in every particular, without alteration or enlargement or any change
whatever.
First Supplemental Indenture
A-2-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10.10 or
11.6 of the Indenture, check the appropriate box below:
| o Section 10.10 | o Section 11.6 |
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 10.10 or Section 11.6 of the Indenture, state the amount you elect to have purchased:
$
Date:
|
||||||||
| Your Signature: | ||||||||
| (Sign exactly as your name appears on the face of this Note) | ||||||||
| Tax Identification No.: | ||||||||
Signature Guarantee*:
|
||||
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
First Supplemental Indenture
A-2-8
[If a Global Security, insert as a separate page—
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
| Amount of | Principal Amount of | |||||||||||||||
| Decrease in | Amount of Increase | this Global Security | Signature of | |||||||||||||
| Principal | in Principal Amount | following such | authorized signatory | |||||||||||||
| Amount of this | of this | decrease | of Trustee or | |||||||||||||
| Date of Exchange | Global Security | Global Security | (or increase) | Depositary | ||||||||||||
First Supplemental Indenture
A-2-9
EXHIBIT A
Form of 2038 Note
Form of 2038 Note
[FORM OF FACE OF NOTE]
[If a Global Security, insert—THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If a Global Security, insert—EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF
TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO
THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[If a Global Security, insert—UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (“DTC”) (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO., OR 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.]
| HOU:2784235.5 | First Supplemental Indenture |
A-3-1
▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD.
7.00% Senior Note due 2038
| Rate of Interest | Maturity Date | Original Issue Date | ||
| 7.00% | March 15, 2038 | March 25, 2008 |
No. 1
|
U.S.$500,000,000 | |||
| CUSIP No. 947075 AE7 |
▇▇▇▇▇▇▇▇▇▇▇ International Ltd., a Bermuda exempted company (herein called the “Company”), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of
FIVE HUNDRED MILLION United States Dollars on the maturity date shown above, and to pay interest
thereon, at the annual rate of interest shown above, from the original issue date shown above or
from the most recent Interest Payment Date (as hereinafter defined) to which interest has been paid
or duly provided for, payable semi-annually on March 15 and September 15 of each year (each, an
“Interest Payment Date”) and at such maturity date, commencing on the first such date after the
original issue date hereof, except that if such original issue date is on or after a Regular Record
Date (as defined below) but before the next Interest Payment Date, interest payments will commence
on the second Interest Payment Date following the original issue date.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the person in whose name this Note is
registered at the close of business on the “Regular Record Date” for any such Interest Payment
Date, which shall be the fourteenth calendar day (whether or not a Business Day) preceding the
applicable Interest Payment Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent lawful), will forthwith cease to
be payable to the Holder on such Regular Record Date and shall be paid to the person in whose name
this Note is registered at the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company, notice of which shall be given to Holders of Notes
not less than 14 days prior to such special record date. Payment of the principal of and interest
on this Note will be made at the agency of the Company maintained for that purpose in New York, New
York and at any other office or agency maintained by the Company for such purpose, in United States
dollars; provided, however, that, at the option of the Company, payment of interest, other than
interest due on the maturity date shown above, 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 Note 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 Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
(Signature Page Follows)
| First Supplemental Indenture |
A-3-2
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇▇▇▇ International Ltd. has caused this instrument to be executed
in its corporate name by the signature of its duly authorized officer.
| ▇▇▇▇▇▇▇▇▇▇▇ | INTERNATIONAL LTD. | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
DATED: March 25, 2008
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the 7.00% Senior Notes due 2038 referred to in the within-mentioned Indenture.
| DEUTSCHE BANK TRUST COMPANY AMERICAS, | ||||
| by Deutsche Bank
National Trust Company, as Trustee |
||||
| By: | ||||
| Authorized Signatory | ||||
| By: | ||||
| Authorized Signatory | ||||
| First Supplemental Indenture |
A-3-3
[REVERSE OF NOTE]
▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD.
7.00% Senior Note due 2038
7.00% Senior Note due 2038
This Note is one of a duly authorized issue of Securities of the Company (which term includes
any successor corporation under the Indenture hereinafter referred to) designated as its 7.00%
Senior Notes due 2038 (the “Notes”), issued or to be issued pursuant to an Indenture dated as of
October 1, 2003, between the Company and Deutsche Bank Trust Company Americas, a New York banking
corporation, as Trustee (the “Trustee,” which term includes any successor trustee under such
Indenture), as amended and supplemented by the First Supplemental Indenture thereto dated as of
March 25, 2008 (such Indenture, as so amended and supplemented being referred to herein as the
“Indenture”). The terms of this Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended. Reference is hereby
made to the Indenture and all further supplemental indentures thereto for a statement of the
respective rights, limitation of rights, duties and immunities thereunder of the Company, the
Guarantor, the Trustee and the Holders and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
As provided in the Indenture, Securities may be issued in one or more series, which different
series 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, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Note is one of the series designated on the face hereof.
This Note is the general, unsecured, senior obligation of the Company and is guaranteed
pursuant to a guarantee (the “Guarantee”) by ▇▇▇▇▇▇▇▇▇▇▇ International, Inc., a Delaware
corporation (the “Guarantor”).
The Notes are subject to redemption upon not less than 30 nor more than 60 days’ notice by
mail, at any time, as a whole or in part, at the election of the Company at a Redemption Price
equal to the greater of: (a) 100% of the principal amount of Securities then outstanding to be
redeemed, plus accrued and unpaid interest thereon to the redemption date; or (b) the sum of the
present values of the remaining scheduled payments of principal and interest on the Securities then
outstanding to be redeemed (not including any portion of such payments of interest accrued as of
the redemption date), discounted to the redemption date on a semi-annual basis (computed based on a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus 45 basis
points (0.45%), as calculated by an Independent Investment Banker, plus accrued and unpaid interest
thereon to the redemption date; but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
“Adjusted Treasury Rate” means, with respect to any redemption date: (a) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the remaining life, as defined below,
yields for the two published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Adjusted Treasury Rate will be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month); or (b) if such release (or any
successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using 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 Adjusted Treasury Rate will be calculated on the third business day preceding the
redemption date.
“Comparable Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, 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.
| First Supplemental Indenture |
A-3-4
“Comparable Treasury Price” means (1) the average of five Reference Treasury Dealer Quotations
for the redemption date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if an Independent Investment Banker obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
“Independent Investment Banker” means ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., Deutsche Bank Securities Inc. or
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated or any of their respective successors, as
designated by us, or if all such firms are unwilling or unable to serve as such, an independent
investment and banking institution of national standing appointed by the Company.
“Reference Treasury Dealer” means: (a) ▇▇▇▇▇▇▇, Sachs & Co., Deutsche Bank Securities Inc. and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and each of their respective successors;
provided that, if any such Reference Treasury Dealer ceases to be a primary U.S. Government
securities dealer in the United States (Primary Treasury Dealer), the Company will substitute
another Primary Treasury Dealer; and (b) up to two other Primary Treasury Dealer selected by the
Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by an Independent Investment Banker, 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 an Independent Investment Banker at 3:00 p.m., New York City
time, on the third business day preceding such redemption date.
In the event of redemption of this Note in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantor 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 Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note 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 Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Note at the times, place(s) and rate, and
in the coin or currency, herein prescribed.
This Global Security or portion hereof may not be exchanged for Definitive Securities of this
series except in the limited circumstances provided in the Indenture. The holders of beneficial
interests in this Global Security will not be entitled to receive physical delivery of Definitive
Securities except as described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.
The Notes are issuable only in registered form without coupons in denominations of U.S. $2,000
and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, 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 Note for registration of transfer, the Company, the Trustee
and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this
Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and
none of the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to
the contrary.
| First Supplemental Indenture |
A-3-5
No recourse under or upon any obligation, covenant or agreement of or contained in the
Indenture or of or contained in any Note, or the Guarantee endorsed thereon, or for any claim based
thereon or otherwise in respect thereof, or in any Security or in the Guarantee, or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, member, officer, manager or director, as such, past, present or future, of the Company
or the Guarantor or of any successor Person, either directly or through the Company or the
Guarantor or any successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment, penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released by the acceptance hereof and as a
condition of, and as part of the consideration for, the Notes and the execution of the Indenture.
The Indenture provides that the Company and the Guarantor (a) will be discharged from any and
all obligations in respect of the Notes (except for certain obligations described in the
Indenture), or (b) need not comply with certain restrictive covenants of the Indenture, in each
case if the Company or the Guarantor deposits, in trust, with the Trustee money or U.S. Government
Obligations (or a combination thereof) which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, in an amount sufficient to pay all the
principal of and interest on the Notes, but such money need not be segregated from other funds
except to the extent required by law.
As more fully provided in the Indenture, no Holder may pursue any remedy under the Indenture
unless the Trustee shall have failed to act after notice of an Event of Default and written request
by Holders of at least 25% in principal amount of a series of the Securities and the offer to the
Trustee of indemnity satisfactory to it; however, such provision does not affect the right to ▇▇▇
for enforcement of any overdue payment on any Security.
Except as otherwise defined herein, all terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a Holder or any assignee, such as: TEN COM
( = tenants in common), TEN ENT ( = tenants by the entireties), JT TEN ( = joint tenants with right
of survivorship and not as tenants in common), CUST ( = Custodian) and U/G/M/A ( = Uniform Gifts to
Minors Act).
The Company will furnish to any holder of record of this Note, upon written request, without
charge, a copy of the Indenture. Requests may be made to: ▇▇▇▇▇▇▇▇▇▇▇ International Ltd., ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary.
This Note shall be governed by and construed in accordance with the laws of the State of New
York without regard to principles of conflicts of law.
| First Supplemental Indenture |
A-3-6
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee) the within instrument of ▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL LTD. and does hereby irrevocably constitute and appoint
Attorney to transfer said instrument on the books of the within-named Company, with full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
Other Identifying Number of Assignee:
Dated: |
(Signature) | |
| Signature Guarantee: | ||
(Participant in a Recognized Signature
Guaranty Medallion Program)
Guaranty Medallion Program)
NOTICE: The signature to this assignment must correspond with the name as written upon the
face of the within instrument in every particular, without alteration or enlargement or any change
whatever.
| First Supplemental Indenture |
A-3-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10.10 or
11.6 of the Indenture, check the appropriate box below:
| o Section 10.10 | o Section 11.6 |
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 10.10 or Section 11.6 of the Indenture, state the amount you elect to have purchased:
$
Date:
Your
Signature:
(Sign exactly as your name appears on the face of this Note)
(Sign exactly as your name appears on the face of this Note)
Tax
Identification No.:
Signature
Guarantee*:
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
| First Supplemental Indenture |
A-3-8
[If a Global Security, insert as a separate page—
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
| Amount of | Principal Amount of | |||||||||||||
| Decrease in | Amount of Increase | this Global Security | Signature of | |||||||||||
| Principal | in Principal Amount | following such | authorized signatory | |||||||||||
| Amount of this | of this | decrease | of Trustee or | |||||||||||
| Date of Exchange | Global Security | Global Security | (or increase) | Depositary | ||||||||||
First
Supplemental Indenture
A-3-9
EXHIBIT B
[FORM OF GUARANTEE NOTATION]
The Guarantor (which term includes any successor Person in such capacity under the Indenture),
has fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities of this series and all other amounts due and
payable under the Indenture and such Securities by the Company.
The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to
the Guarantee and the Indenture are expressly set forth in Article Fourteen of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Guarantee.
| Guarantor: | ||||
| ▇▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL, INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| First Supplemental Indenture |
B-1