Exhibit 10.9
First Supplemental Indenture
Dated as of February 23, 1999
▇▇▇▇'▇ COMPANIES, INC.
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
_______________
First Supplemental Indenture to the
Amended and Restated Indenture
dated as of December 1, 1995
FIRST SUPPLEMENTAL INDENTURE, dated as of February 23, 1999 (herein called the
"Supplemental Indenture"), between ▇▇▇▇'▇ COMPANIES, INC., a corporation duly
organized and existing under the laws of the State of North Carolina (herein
called the "Company"), having its principal office at ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association duly organized and existing under the laws of the
United States, as Trustee (herein called the "Trustee"),
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the Trustee an
Amended and Restated Indenture, dated as of December 1, 1995 (as supplemented
and amended from time to time, the "Indenture"), providing for the issuance
from time to time of its unsecured unsubordinated debentures, notes or other
evidences of indebtedness (herein called the "Securities"), to be issued in
one or more series as provided in the Indenture; and
WHEREAS, it is provided in Section 901 of the Indenture that without the
consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee may enter into indentures supplemental thereto (1) to add to,
change or eliminate any of the provisions of the Indenture in respect of one
or more series of Securities, provided that any such addition, change or
elimination (i) shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any such
Security with respect to such provision or (ii) shall become effective only
when there is no such Security Outstanding, (2) to add to the covenants of the
Company for the benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included solely
for the benefit of such series) and (3) to establish the form or terms of
Securities of any series as permitted by Sections 201 and 301 of the
Indenture; and
WHEREAS, the Company desires to supplement and amend the Indenture to allow
for the issuance of Securities to be initially sold within the United States
to U.S. Persons that are Qualified Institutional Buyers and issued in the form
of one or more Restricted Global Securities deposited with the Trustee, as
custodian for the Depositary, and registered in the name of a nominee of the
Depositary; and
WHEREAS, the Company desires to set forth the terms and form of a Restricted
Global Security to be sold within the United States to Qualified Institutional
Buyers pursuant to Rule 144A to be known as the Company's 6 1/2% Debentures Due
March 15, 2029, in an aggregate principal amount of FOUR HUNDRED MILLION
DOLLARS ($400,000,000) (herein called the "Rule 144A 6 1/2 Debentures"); and
WHEREAS, the Rule 144A 6 1/2% Debentures and the certificate of authentication
to be borne by the Rule 144A 6 1/2% Debentures are to be substantially in the
form set forth in Exhibit A hereto; and
NOW, THEREFORE, for consideration, the adequacy and sufficiency of which are
hereby acknowledged by the parties hereto, each party agrees as follows, for
the benefit of the other parties and for the equal and proportionate benefit
of all Holders of the Securities, as follows:
ARTICLE ONE
AMENDMENTS
SECTION 101. Article One of the Indenture shall be amended by inserting in
Section 101 the following new terms with the following definitions in the
appropriate alphabetic positions:
"Closing Time" means, with respect to the Rule 144A 6 1/2% Debentures,
February 23, 1999, the date of initial issuance of the Securities issued
hereunder.
"Exchange Certificate" means a certificate substantially in the form of
Exhibit C hereto, as such form may be revised or modified with respect
to any series of Securities by a Board Resolution or indenture
supplemental hereto creating such series.
"Exchange Securities" means Securities that are issued and exchanged for any
series of Restricted Securities in accordance with an Exchange Offer, as
provided for in a registration rights agreement related to such series and
this Indenture, containing substantially identical terms as such series of
Restricted Securities, except that (i) such Exchange Securities shall not
contain terms with respect to transfer restrictions and shall be registered
under the Securities Act and (ii) certain provisions relating to an increase
in the stated rate of interest thereon shall be eliminated.
Exchange Offer" means an offer by the Company to Holders of any series of
Restricted Securities to exchange all of such Restricted Securities for
Exchange Securities, as provided for in a related registration rights
agreement.
"Qualified Institutional Buyer" means a "qualified institutional buyer" as
such term is defined in Rule 144A.
"Registration Rights Agreement" means, with respect to the Rule 144A 6 1/2%
Debentures, the Registration Rights Agreement dated as of February 23, 1999,
among the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇▇ Brothers Inc., as initial
purchasers.
"Restricted Global Security" means Securities initially sold within the United
States in reliance on Rule 144A.
"Restricted Physical Security" means any Restricted Security in permanent
certificated form.
"Restricted Security" means any Security issued pursuant to an exemption from
the Securities Act and bearing a Restrictive Legend.
"Restrictive Legend" has the meaning set forth in Section 204.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A 6 1/2% Debenture" has the meaning set forth in Section 201.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Shelf Registration Statement" means, with respect to any series of Restricted
Securities, the Shelf Registration Statement specified in the registration
rights agreement related to such series.
"Transfer Certificate" means a certificate substantially in the form of
Exhibit B hereto and to be attached as Annex A to the Form of Rule 144A 6 1/2%
Debenture, as such form may be varied or modified with respect to any series
of Securities by a Board Resolution or indenture supplemental hereto.
SECTION 102. Article Two of the Indenture shall be amended by adding to the
end of Section 203 the following:
"Securities offered and sold in reliance on Rule 144A under the Securities Act
may be issued in the form of one or more permanent global Securities in
substantially the form set forth in Exhibit A and containing the legend set
forth in Section 204 (each, a "Restricted Global Security"), deposited with
the Depositary or with the Trustee, as custodian for the Depositary or its
nominee, duly executed by the Company and authenticated by the Trustee as
herein provided. The aggregate principal amount of a Restricted Global
Security may from time to time be increased or decreased by adjustments made
on the records of the Depositary or the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
Restricted Securities issued pursuant to Sections 305 and 312 in exchange for
or upon transfer of beneficial interests in a Restricted Global Security may
be in the form of Restricted Physical Securities containing the Restrictive
Legend as set forth in Section 204 (a "Restricted Physical Security") until
such time as the conditions set forth in Section 204 are satisfied, in
substantially the form set forth in Exhibit A, as provided in Section 312.
Exchange Securities shall be issued in substantially the form set forth in
Exhibit A, but without any Restrictive Legend."
Section 103. Article Two of the Indenture shall be amended by adding to the
end of such Article the following:
"Section 204. Restrictive Legends.
Unless and until (i) a Restricted Security is sold pursuant to an effective
Shelf Registration Statement or (ii) a Restricted Security is exchanged for an
Exchange Security in an Exchange Offer pursuant to an effective Exchange Offer
Registration Statement, in each case pursuant to an applicable registration
rights agreement, each Restricted Global Security and Restricted Physical
Security shall bear the following legend set forth below (the "Restrictive
Legend") on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACQUISITION HEREOF
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")) OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO
RULE 903 OR 904 OF REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE
DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE
144 UNDER THE SECURITIES ACT AND ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS
SECURITY) OR THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR
(D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
PURSUANT TO RULE ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇ (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY,
THE TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON
THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
SECTION 104. Article Three of the Indenture shall be amended by adding the
following to the end of Section 305:
"Any Physical Security delivered in exchange for an interest in the Global
Security pursuant to this Section shall bear the Restrictive Legend unless
such exchange is made on or after (i) a Restricted Security is sold under an
effective Shelf Registration Statement, (ii) a Restricted Security is
exchanged for an Exchange Security in an Exchange Offer under an effective
Exchange Offer Registration Statement or (iii) two years after the later of
the original issue date of a Restricted Security and the last date on which
the Company or any affiliate of the Company was the owner of such Restricted
Security (the "Resale Restriction Termination Date") and except as otherwise
provided in Section 312."
SECTION 105. Article Three of the Indenture shall be amended by adding the
following to the end of such Article:
"Section 312. Transfer Provisions.
Unless and until (i) a Restricted Security is sold pursuant to an effective
Shelf Registration Statement, or (ii) a Restricted Security is exchanged for
an Exchange Security in an Exchange Offer under an effective Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The provisions of this Section 312 shall apply to all transfers
involving any Restricted Physical Security and any beneficial interest in any
Restricted Global Security.
(b) As used in this Section 312 only, "delivery" of a certificate by
a transferee or transferor means the delivery to the Security Registrar by
such transferee or transferor of the applicable certificate duly completed;
"holding" includes both possession of a Physical Security and ownership of a
beneficial interest in a Global Security, as the context requires;
"transferring" a Global Security means transferring that portion of the
principal amount of the transferor's beneficial interest therein that the
transferor has notified the Security Registrar that it has agreed to transfer;
and "transferring" a Physical Security means transferring that portion of the
principal amount thereof that the transferor has notified the Security
Registrar that it has agreed to transfer.
As used in this Indenture, "Exchange Certificate" means a certificate
substantially in the form set forth as Exhibit C; and "Non-Registration
Opinion and Supporting Evidence" means a written opinion of counsel reasonably
acceptable to the Company to the effect that, and such other certification or
information as the Company may reasonably require to confirm that, the
proposed transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act.
(c) An Exchange Certificate, if not actually delivered, shall be
deemed delivered if (i) (A) the transferor advises the Company and the Trustee
in writing that the relevant offer and sale were made in accordance with the
provisions of Rule 144A (or, in the case of a transfer of a Restricted
Physical Security, the transferor checks the box provided on such Security to
that effect) and (B) the transferee advises the Company and the Trustee in
writing that (x) it and, if applicable, each account for which it is acting in
connection with the relevant transfer, is a "Qualified Institutional Buyer,"
(y) it is aware that the transfer of Restricted Securities to it is being made
in reliance on the exemption from the provisions of Section 5 of the
Securities Act provided by Rule 144A and (z) prior to the proposed date of
transfer it has been given the opportunity to obtain from the Company the
information referred to in Rule 144A(d)(4), and has either declined such
opportunity or has received such information (or, in the case of a transfer of
a Restricted Physical Security, the transferee signs the certification
provided on the such Security to that effect); or (ii) the transferor holds
the Restricted Global Security and is transferring to a transferee that shall
take delivery in the form of the Restricted Global Security.
(d) If the proposed transferor holds:
(1) a Restricted Physical Security which is surrendered to the
Security Registrar, and the proposed transferee or transferor, as applicable:
(A) delivers (or is deemed to have delivered pursuant
to clause (c) above) an Exchange Certificate and the proposed transferee
requests delivery in the form of a Restricted Physical Security, then the
Security Registrar shall (x) register such transfer in the name of such
transferee and record the date thereof in its books and records, (y) cancel
such surrendered Restricted Physical Security and (z) deliver a new Restricted
Physical Security to such transferee duly registered in the name of such
transferee in principal amount equal to the principal amount being transferred
of such surrendered Restricted Physical Security; or
(B) delivers (or is deemed to have delivered pursuant
to clause (c) above) an Exchange Certificate and the proposed transferee is or
is acting through a Participant and requests that the proposed transferee
receive a beneficial interest in the Restricted Global Security, then the
Security Registrar shall (x) cancel such surrendered Restricted Physical
Security, (y) record an increase in the principal amount of the Global
Security equal to the principal amount being transferred of such surrendered
Restricted Physical Security and (z) notify the Depositary in accordance with
the procedures of the Depositary that it has effected such transfer.
In any of the cases described in this Section 312(d)(1), the Security
Registrar shall deliver to the transferor a new Restricted Physical Security
in principal amount equal to the principal amount not being transferred of
such surrendered Restricted Physical Security, as applicable.
(2) a beneficial interest in the Global Security, and the
proposed transferee or transferor, as applicable:
(A) delivers (or is deemed to have delivered pursuant
to clause (c) above) an Exchange Certificate and the proposed transferee
requests delivery in the form of a Restricted Physical Security, then the
Security Registrar shall (w) register such transfer in the name of such
transferee and record the date thereof in its books and records, (x) record a
decrease in the principal amount of the Restricted Global Security in an
amount equal to the beneficial interest therein being transferred, (y) deliver
a new Restricted Physical Security to such transferee duly registered in the
name of such transferee in principal amount equal to the amount of such
decrease and (z) notify the Depositary in accordance with the procedures of
the Depositary that it has effected such transfer; or
(B) delivers (or is deemed to have delivered pursuant
to clause (c) above) an Exchange Certificate and the proposed transferee is or
is acting through a Participant and requests that the proposed transferee
receive a beneficial interest in the Restricted Global Security, then the
transfer shall be effected in accordance with the procedures of the Depositary
therefor.
(e) In any case in which the Security Registrar is required to
deliver a Restricted Physical Security to a transferee or transferor, the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, such Restricted Physical Security.
(f) Any transferee entitled to receive a Restricted Physical Security
may request that the principal amount thereof be evidenced by one or more
Restricted Physical Securities in any authorized denomination or denominations
and the Security Registrar shall comply with such request if all other
transfer restrictions are satisfied.
(g) The Security Registrar shall effect and record, upon receipt of a
written request from the Company so to do, a transfer not otherwise permitted
by Section 312(d), such recording to be done in accordance with the otherwise
applicable provisions of Section 312(d), upon the furnishing by the proposed
transferor or transferee of a Non-Registration Opinion and Supporting
Evidence.
(h) By its acceptance of any Security bearing the Restrictive Legend,
each Holder of such Security acknowledges the restrictions on transfer of such
Security set forth in this Indenture and in the Restrictive Legend and agrees
that it shall transfer such Security only as provided in this Indenture. The
Security Registrar shall not register a transfer of any Security unless such
transfer complies with the restrictions with respect thereto set forth in this
Indenture. The Security Registrar shall not be required to determine (but may
rely upon a determination made by the Company) the sufficiency of any such
certifications, legal opinions or other information.
(i) Upon the transfer, exchange or replacement of Securities not
bearing the Restrictive Legend, the Security Registrar shall deliver
Securities that do not bear the Restrictive Legend. Upon the transfer,
exchange or replacement of Securities bearing the Restrictive Legend, the
Security Registrar shall deliver only Securities that bear the Restrictive
Legend unless (i) the requested transfer is at least two years after the
original issue date of the Restricted Security (with respect to any Restricted
Physical Security), (ii) there is delivered to the Security Registrar an
Opinion of Counsel reasonably satisfactory to the Company and the Trustee to
the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act or (iii) such Securities are exchanged for Exchange Securities
pursuant to an Exchange Offer.
Section 313. CUSIP Numbers.
The Company may use "CUSIP" numbers (if then generally in use) in issuing the
Securities and, if so, the Trustee shall use "CUSIP" numbers in notices to
Holders as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice and that reliance may
be placed only on the other identification numbers printed on the Securities.
The Company shall promptly notify the Trustee of any change in the CUSIP
numbers."
SECTION 106. Article Seven of the Indenture shall be amended by adding the
following paragraph immediately following the paragraph contained in Section
704:
"The Company will take all actions necessary to permit resales of any
Securities issued pursuant to Rule 144A of the Securities Act including,
without limitation, furnishing upon request of a Holder of such Security to
such Holder and a prospective purchaser designated by such Holder financial
and other information of the Company required to be delivered under Rule
144A(d)(4) of the Securities Act if at the time of such request the Company is
not a reporting company under Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended."
SECTION 107. The Indenture shall be amended by adding an exhibit titled
"Exhibit B" immediately following Exhibit A of the Indenture. Exhibit B shall
be the form of Transfer Certificate attached as Exhibit B hereto.
SECTION 108. The Indenture shall be amended by adding an exhibit titled
"Exhibit C" immediately following Exhibit B of the Indenture. Exhibit C shall
be the form of Exchange Certificate attached as Exhibit C hereto.
SECTION 109. The Indenture shall be amended by adding an exhibit titled
"Exhibit D" immediately following Exhibit C of the Indenture. Exhibit D shall
be in the Form of Transfer attached as Exhibit D hereto.
ARTICLE TWO
PROVISIONS FOR THE RULE 144A 6 1/2% DEBENTURES
SECTION 201. There shall be a series of Securities entitled "6 1/2% Debentures
Due March 15, 2029" (herein designated the "Rule 144A 6 1/2% Debentures"). The
form of the Rule 144A 6 1/2% Debentures and the Trustee's certificate of
authentication to be borne thereby shall be substantially in the forms set
forth in Exhibit A hereto and shall be executed, authenticated and delivered
in accordance with the provisions of, and shall in all respects be subject to,
all of the terms, conditions and covenants of the Indenture and this
Supplemental Indenture. The aggregate principal amount of the Rule 144A 6 1/2%
Debentures that may be executed by the Company and authenticated by the
Trustee hereunder shall be limited to FOUR HUNDRED MILLION DOLLARS
($400,000,000).
SECTION 202. In accordance with the terms and conditions of the Indenture,
the Company may issue and sell the Rule 144A 6 1/2% Debentures inside the
United States without registration under the Securities Act in reliance on
Rule 144A thereunder.
SECTION 203. The Rule 144A 6 1/2% Debentures shall be represented initially by
permanent global debentures in definitive, fully registered form without
interest coupons (the "Restricted Global Security"). Each Restricted Global
Security shall be registered in the name of a nominee of the Depositary and
deposited on behalf of the purchasers of the Rule 144A 6 1/2% Debentures
represented thereby with a custodian for the Depositary for credit to the
respective accounts of the purchasers (or to such other accounts as they may
direct). Except as set forth below, each Restricted Global Security shall be
in the form of the Rule 144A 6 1/2% Debenture attached hereto as Exhibit A and
may be transferred, in whole and not in part, only to another nominee of the
Depositary or to a successor of the Depositary or its nominee.
SECTION 204. (a) Each Restricted Global Security, or any Rule 144A 6 1/2%
Debenture that may be issued in exchange for an interest in a Restricted
Global Security, shall be dated as provided in Section 303 of the Indenture,
shall mature on March 15, 2029 and shall bear interest at the rate of 6 1/2%
per annum from February 23, 1999, payable semiannually on March 15 and
September 15 in each year, commencing with September 15, 1999, until payment
of the principal amount shall have been made or duly provided for. The Record
Dates with respect to the interest payment dates for the Rule 144A 6 1/2%
Debentures shall be March 1 and September 1 (whether or not a business day),
respectively. The holder of record of a Rule 144A 6 1/2% Debenture on any
Record Date for the payment of interest shall be entitled to receive the
interest payable on such interest payment date.
(b) Both principal of and interest on the Rule 144A 6 1/2% Debentures
shall be payable at the office of the Company in the Borough of Manhattan, The
City of New York, New York or the City of North Wilkesboro, North Carolina or
at any other office of the Company maintained by the Company for such purpose;
provided that interest may be payable, at the option of the Company, by check
mailed to the registered address of the person entitled thereto as such
address shall appear on the registry books of the Company. On each interest
payment date the Trustee shall pay to the registered holder interest accrued
in respect of such Rule 144A 6 1/2% Debenture. Payment of principal on a Rule
144A 6 1/2% Debenture shall be paid to the registered holder or upon his order
only upon presentation and surrender for payment of such Rule 144A 6 1/2%
Debenture on or after the payment date at the office of the Company in the
Borough of Manhattan, The City of New York, New York or the City of North
Wilkesboro, North Carolina or at any other office of the Company maintained by
the Company for such purpose.
(c) The Rule 144A 6 1/2% Debentures shall not be convertible into or
exchangeable for equity securities of the Company.
(d) The Rule 144A 6 1/2% Debentures shall not be subject to any
sinking fund.
(e) The Company shall not have any redemption or repayment rights
with respect to the Rule 144A 6 1/2% Debentures.
(f) The Rule 144A 6 1/2% Debentures shall not be included for listing
on any national securities exchange.
SECTION 205. (a) So long as a nominee of the Depositary is the registered
owner of any Restricted Global Security, such nominee shall be considered the
sole owner and holder of the Rule 144A 6 1/2% Debentures represented by such
Restricted Global Security under the Indenture, as supplemented and amended
hereby. Except as herein provided, owners of beneficial interests in any
Restricted Global Security shall not be entitled to have Rule 144A 6 1/2%
Debentures represented by the such Restricted Global Security registered in
their names, shall not receive or be entitled to receive physical delivery of
Rule 144A 6 1/2% Debentures in certificated form and shall not be considered
the owners or holders thereof under the Indenture.
(b) Neither the Company nor the Trustee shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in any Restricted
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
ARTICLE THREE
MISCELLANEOUS
SECTION 301. Capitalized terms used but not defined herein shall have the
respective meanings set forth in the Indenture.
SECTION 302. Except as supplemented and amended hereby, the Indenture is in
all respects ratified and confirmed, and all of the terms, provisions and
conditions thereof shall be and remain in full force and effect, and this
Supplemental Indenture and all its provisions shall be deemed a part thereof.
SECTION 303. In case any provision in this 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 304. If any provision of this Supplemental Indenture limits,
qualifies or conflicts with any other provision hereof or of the Indenture
which provision is required to be included in the Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
SECTION 305. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICTS OF LAWS AND RULES OF SAID STATE.
SECTION 306. This Supplemental Indenture has been simultaneously executed in
several counterparts, each of which shall be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
Delivery by telecopier of an executed signature page hereto shall be effective
as delivery of a manually executed counterpart hereof.
SECTION 307. This Supplemental Indenture shall be deemed to have been
executed on the date of the acknowledgment thereof by the officer of the
Trustee who signed it on behalf of the Trustee.
IN WITNESS WHEREOF, the Company and the Trustee have caused their names to be
signed hereto by their respective officers thereunto duly authorized and their
respective corporate seals, duly attested, to be hereunto affixed, all as of
the day and year first above written.
[CORPORATE SEAL] ▇▇▇▇'▇ COMPANIES, INC.
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President Title: Assistant Treasurer
and Secretary
[CORPORATE SEAL] THE FIRST NATIONAL BANK OF
CHICAGO,
Trustee
Attest: /s/ ▇▇▇▇ ▇. ▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Trust Officer
STATE OF NORTH CAROLINA: )
) SS.:
COUNTY OF ▇▇▇▇▇▇: )
On this 23rd day of February, 1999, before me personally came ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
the Assistant Treasurer of ▇▇▇▇'▇ COMPANIES, INC., one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument bearing the
name of said corporation is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
[Notarial Seal]
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Notary Public, State of North Carolina
No.
Qualified in the County of ▇▇▇▇▇▇
Commission Expires 11-16-2003
STATE OF ILLINOIS: )
) SS.:
COUNTY OF ▇▇▇▇: )
On this 23rd day of February, 1999, before me personally came ▇▇▇▇▇▇ ▇▇▇▇▇▇,
to me known, who, being by me duly sworn, did depose and say that he/she
resides at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; that he/she is a
duly elected or appointed, qualified and serving officer of THE FIRST NATIONAL
BANK OF CHICAGO, one of the corporations described in and which executed the
foregoing instrument; that he/she knows the seal of said corporation; that the
seal affixed to said instrument bearing the name of said corporation is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he/she signed his/her name thereto by like
authority.
[Notarial Seal]
/s/ ▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇
Notary Public, State of Illinois
No.
Qualified in the County of ▇▇▇▇
Commission Expires 11-13-2000
A-1
EXHIBIT A
[FORM OF DEBENTURES]
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to ▇▇▇▇'▇ Companies,
Inc. or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or to such other
entity or in such other name as is requested by an authorized representative
of DTC (and any payment hereon 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
since the registered owner hereof, Cede & Co., has an interest herein.
Transfers of this Global Security shall be limited to transfers in whole, but
not in part, to nominees of Cede & Co. or to a successor thereof or such
successor's nominee and transfers of portions of this Global Security shall be
limited to transfers made in accordance with the restrictions set forth in
Section 303 of the Indenture referred to in this Global Security.
A-2
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACQUISITION HEREOF
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")) OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO
RULE 903 OR 904 OF REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE
DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE
144 UNDER THE SECURITIES ACT AND ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS
SECURITY) OR THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR
(D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
PURSUANT TO RULE ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇ (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY,
THE TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON
THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
▇▇▇▇'▇ COMPANIES, INC.
6 1/2% DEBENTURES
DUE MARCH 15, 2029
CUSIP No. ▇▇▇▇▇▇▇▇▇
No. _____
$____________________
Original Principal Amount
▇▇▇▇'▇ Companies, Inc., a corporation duly organized and existing under the
laws of the State of North Carolina (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to Cede & Co. or registered
assigns, the principal sum of ________________________________________
($ ) on March 15, 2029, at the office or agency of the
Company referred to below, in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts, and to pay interest thereon in like coin or currency from
February 23, 1999, or from the most recent Interest Payment Date on which
interest has been paid or duly provided for, semi-annually in arrears on March
15 and September 15 in each year, commencing September 15, 1999, at the rate
of 6 1/2% per annum, until the principal hereof is paid or made available for
payment, and (to the extent lawful) to pay interest at the same rate per annum
on any overdue principal and premium and on any overdue installment of
interest until paid.
Interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date, as provided in the Indenture, shall be paid to the Person in
whose name this Debenture (or one or more predecessor Debentures) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to
be payable to the Person in whose name this Debenture is registered on such
Regular Record Date and may either be paid to the Person in whose name this
Debenture is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Person in whose name this Debenture is
registered not less than ten days prior to such Special Record Date, or be
paid at any time in any other lawful manner, all as more fully provided in the
Indenture.
This Debenture is a "book-entry" debenture and is being registered in the name
of Cede & Co. as nominee of The Depository Trust Company ("DTC"), a clearing
agency. Subject to the terms of the Amended and Restated Indenture, dated as
A-4
of December 1, 1995 (as supplemented by the First Supplemental Indenture dated
as of February 23, 1999 and as supplemented and amended from time to time, the
"Indenture"), between the Company and The First National Bank of Chicago, as
trustee (the "Trustee"), this Debenture will be held by a clearing agency or
its nominee, and beneficial interests will be held by beneficial owners
through the book-entry facilities of such clearing agency or its nominee in
minimum denominations of $1,000 and increments of $1,000 in excess thereof.
The statements set forth in the restrictive legend above are an integral part
of the terms of this Debenture and by acceptance hereof each holder of this
Debenture agrees to be subject to and bound by the terms and provisions set
forth in such legend.
As long as this Debenture is registered in the name of DTC or its nominee, the
Trustee will make payments of principal of and interest on this Debenture by
wire transfer of immediately available funds to DTC or its nominee.
Notwithstanding the above, the final payment on this Debenture will be made
after due notice by the Trustee of the pendency of such payment and only upon
presentation and surrender of this Debenture at its principal corporate trust
office or such other offices or agencies appointed by the Trustee for that
purpose and such other locations provided in the Indenture.
Payments of principal of (and premium, if any) and interest on this Debenture
will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payments of public and private debts; provided, however, that at
the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register.
This Debenture is one of a duly authorized issue of debentures of the Company,
designated 6 1/2% Debentures due March 15, 2029 (the "Debentures"), limited in
aggregate principal amount at any time Outstanding to FOUR HUNDRED MILLION
DOLLARS ($400,000,000) which may be issued under the First Supplemental
Indenture. Reference is hereby made to the Indenture, the First Supplemental
Indenture and all indentures supplemental thereto for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the Holders of the Debentures, and
the terms upon which the Debentures are, and are to be, authenticated and
delivered. All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Holder of this Debenture is entitled to the benefits of the Registration
Rights Agreement, dated as of February 23, 1999 (the "Registration Rights
Agreement"), between the Company and the Initial Purchasers named therein. In
the event that (i) the Company fails to file an Exchange Offer Registration
A-5
Statement with respect to the Debentures with the Commission on or prior to
the 150th calendar day following the Closing Time, (ii) the Commission does
not declare such Exchange Offer Registration Statement effective on or prior
to the 180th calendar day following the Closing Time, (iii) the Exchange Offer
is not consummated on or prior to the 30th calendar day following the
effective date of the Exchange Offer Registration Statement or (iv) if
required, a Shelf Registration Statement with respect to the Debentures is not
declared effective by the Commission on or prior to the 210th calendar day
following the Closing Time (each, a "Registration Default"), the per annum
interest rate borne by the Debentures shall be increased by one-quarter of one
percent (0.25%) per annum from the end of the applicable period giving rise to
such Registration Default. The interest rate borne by the Debentures will be
increased by an additional one-quarter of one percent (0.25%) per annum for
each subsequent 90-day period (or portion thereof) during which any such
Registration Default continues up to a maximum aggregate increase in the
annual interest rate of one-half of one percent (0.50%) per annum. Following
the cure of all Registration Defaults, the interest rate borne by the
Debentures shall be reduced to the original interest rate borne by the
Debentures. All accrued additional interest shall be paid to Holders by the
Company in the same manner as interest is paid pursuant to the Indenture. All
terms used in this Debenture that are defined in the Registration Rights
Agreement shall have the meanings assigned to them in the Registration Rights
Agreement.
The Debentures do not have the benefit of any sinking fund obligations and
shall not be redeemable at the option of the Company or repayable at the
option of the Holder prior to maturity.
If an Event of Default shall occur and be continuing, the principal of all the
Debentures may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Company under this Debenture and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Debenture.
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 rights of the Holders of the Debentures under the Indenture at
any time by the Company, the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Debentures at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Debentures at the
time Outstanding, on behalf of the Holders of all Debentures, to waive
compliance by the Company 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 Debenture shall be conclusive and binding upon
A-6
such Holder and upon all future Holders of this Debenture and of any Debenture
issued upon the registration of transfer thereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Debenture.
No reference herein to the Indenture and provision of this Debenture 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 Debenture at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations on transfer of
this Debenture by DTC or its nominee, the transfer of this Debenture is
registrable in the Security Register, upon surrender of this Debenture for
registration of transfer at the office or agency of the Company in the Borough
of Manhattan, The City of New York, duly endorsed by, or accompanied by the
written instrument of transfer attached hereto duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more
new Debentures, of authorized denominations and for the same aggregate
principal amount, shall be issued to the designated transferee or transferees.
The Debentures are issuable only in fully registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Debentures
are exchangeable for a like aggregate principal amount of Debentures of
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 of Debentures, 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 Debenture for registration of transfer, the
Company, the Trustee and any agent of the Company, or the Trustee may treat
the Person in whose name this Debenture is registered as the owner hereof for
all purposes, whether or not this Debenture be overdue, and none of the
Company, the Trustee or any such agent shall be affected by notice to the
contrary.
Interest on this Debenture shall be computed on the basis of a 360-day year of
twelve 30-day months.
The Company shall furnish to any Holder of record of Debentures, upon written
request and without charge, a copy of the Indenture.
The Indenture and this Debenture each shall be governed by and construed in
A-7
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Debenture shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
A-8
IN WITNESS WHEREOF, ▇▇▇▇'▇ COMPANIES, INC. has caused this Debenture to be
signed, manually or in facsimile, by a duly elected or appointed, qualified
and serving officer and has caused a facsimile of its corporate seal to be
imprinted hereon, attested by the manual or facsimile signature of a duly
elected or appointed, qualified and serving officer.
▇▇▇▇'▇ COMPANIES, INC.
By.............................
Name:
Title:
Dated: February ___, 1999
[SEAL]
Attest:.....................................
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE SECURITIES OF THE SERIES DESIGNATED THEREIN REFERRED
TO IN THE WITHIN-MENTIONED INDENTURE.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By.....................................
Authorized Officer
B-1
EXHIBIT B
Annex A
[FORM OF TRANSFER CERTIFICATE]
▇▇▇▇'▇ Companies, Inc. (the "Company")
The First National Bank of Chicago,
as Trustee (the "Trustee")
Re: 6 1/2% Debentures Due March 15, 2029
Reference is hereby made to the Amended and Restated Indenture, dated as of
December 1, 1995 (as supplemented by the First Supplemental Indenture dated as
of February 23, 1999, and as supplemented and amended from time to time, the
"Indenture"), between the Company and the Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
Other terms shall have the meanings given to them in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act").
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________
________________________________________________________
________________________________________________________
(Print or type name and address of transferee, including ZIP code)
________________________________________________________
(Taxpayer Identification Number of transferee)
the within Debenture and all rights thereunder, hereby irrevocably
constituting and appointing ____________________ attorney-in-fact to transfer
said Debenture on the books of the Company with full power of substitution in
the premises.
In connection with any transfer of this Debenture occurring prior to the date
that is the earlier of the date of an effective Shelf Registration Statement
or the Resale Restriction Termination Date, the undersigned confirms that
without utilizing any general solicitation or general advertising:
B-2
B-2
[Check One]
____ Such Debenture is being transferred in accordance with (i) the
transfer restrictions set forth in the Indenture and the Debentures
and (ii) Rule 144A under the Securities Act to a Transferee that the
Transferor reasonably believes is purchasing the Debentures for its
own account or an account with respect to which the Transferee
exercises sole investment discretion, and the Transferee and any such
account is a "Qualified Institutional Buyer" within the meaning of
Rule 144A, and such Transferee is aware that the sale to it is being
made in reliance upon Rule 144A, in each case in a transaction
meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
other jurisdiction.
or
____ Such Debenture is being transferred pursuant to an exemption from
registration under the Securities Act provided by Rule 144 thereunder
upon provision of an opinion of counsel and such other evidence
acceptable to the Company that such offer, sale, pledge or transfer
is in compliance with the Securities Act and other applicable laws,
in each case in a form satisfactory to the Company.
or
____ Such Debenture is being transferred in a transaction other than in
accordance with the above upon provision of a legal opinion and other
evidence requested by the Company in form and substance satisfactory
to the Company, to the effect that the proposed transfer is being
made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or other Security
Registrar shall not be obligated to register this Debenture in the name of any
Person other than the Holder hereof unless and until the conditions to any
such transfer of registration set forth herein and in Section 312 of the
Indenture shall have been satisfied.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Initial Purchaser named in the Offering Memorandum
distributed by the Company in connection with the sale of the Debentures.
You are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
B-3
B-3
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
[Insert Name of Transferor]
By:________________________
Name:
Title:
Dated: ____________________
(N.B.: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever)
TO BE COMPLETED BY PURCHASER IF THE FIRST OPTION ABOVE IS CHECKED.
Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
The undersigned represents and warrants that it is purchasing this Debenture
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Date:
(NOTICE: To be executed by an executive officer)
B-4 B-4
PAYMENT INSTRUCTIONS
The assignee should include the following for purposes of payment:
Payment shall be made, by wire transfer or otherwise, in immediately available
funds, to _____________________, for the account of ______________________,
account number ___________, or, if mailed, by check to _____________________.
Applicable reports and statements should be mailed to _____________________.
This information is provided by _____________________, the assignee named
above, or _____________________, as its agent.
C-1
EXHIBIT C
FORM OF EXCHANGE CERTIFICATE
▇▇▇▇'▇ Companies, Inc. (the "Company")
The First National Bank of Chicago,
as Trustee (the "Trustee")
Re: ▇▇▇▇'▇ Companies, Inc. 6 1/2% Debentures
Due March 15, 2029 (the "Debentures")
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Indenture, dated as of
December 1, 1995 (as supplemented by the First Supplemental Indenture dated as
of February 23, 1999 and as further supplemented and amended from time to
time, the "Indenture"), between the Company and the Trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture. Other terms shall have the meanings given to them in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the "Securities
Act").
In connection with our proposed sale of $______________ aggregate principal
amount of Debentures, we confirm that such sale has been effected pursuant to
and in accordance with Rule 144A. We are aware that the transfer of
Debentures to us is being made in reliance on the exemption from the
provisions of Section 5 of the Securities Act provided by Rule 144A. Prior to
the date of this Certificate, we have been given the opportunity to obtain
from the Company the information referred to in Rule 144A(d)(4), and have
either declined such opportunity or have received such information.
Each of you is entitled to rely upon this Certificate and is irrevocably
authorized to produce this Certificate or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of PURCHASER]
By:
Name:
Title:
Address:
Date of this Certificate: __________________
D-1
EXHIBIT D
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby transfers to
(PRINT NAME AND ADDRESS OF TRANSFEREE)
U.S.$_______________ principal amount of this Security, and all rights with
respect thereto, and irrevocably constitutes and appoints
_____________________________ as attorney to transfer this Security on the
books kept for registration thereof, with full power of substitution.
Dated
Certifying signature
Signed:
Note:
(i) The signature on this transfer form must correspond to the name as it
appears on the face of this Security.
(ii) A representative of the holder of the Security should state the
capacity in which he or she signs (e.g., executor).
(iii) The signature of the person effecting the transfer shall conform to
any list of duly authorized specimen signatures supplied by the
registered holder or shall be certified by a bank which is a member of
the Security Transfer Agent Medallion Program or in such other manner
as the paying agent, acting in its capacity as transfer agent or the
Trustee, acting in its capacity as Trustee, may require.