▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
AND
THE BANK OF NEW YORK,
as Trustee
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Supplemental Indenture
No. 1
Dated as of February 10, 1999
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Medium Term Notes, Series B
Due Nine Months or More from Date of Issue
SUPPLEMENTAL INDENTURE NO. 1, dated as of February 10, 1999
between ▇▇▇▇▇▇ & ▇▇▇▇▇ Corporation, a Tennessee Corporation (the
"COMPANY") and The Bank of New York, a New York banking corporation, as
Trustee (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company and the Trustee have executed and delivered an Indenture
dated as of August 1, 1998, as amended or supplemented (the "INDENTURE") to
provide for the issuance from time to time of the Company's Securities.
Sections 2.01 and 3.01 of the Indenture provide that the form and terms
of Securities of any series may be established pursuant to an indenture
supplemental to the Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and under the Indenture and
duly issued by the Company and to make this Supplemental Indenture No. 1 a valid
agreement of the Company, in accordance with their and its terms, have been
done.
NOW, THEREFORE, this Indenture WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the holders hereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the holders of the Securities of the series
hereby established, as follows:
ARTICLE 1
RELATION TO THE INDENTURE; DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
SECTION 1.01. RELATION TO THE INDENTURE. This Supplemental Indenture
constitutes an integral part of the Indenture.
SECTION 1.02. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.
For all purposes of this Supplemental Indenture unless otherwise specified
herein:
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(a) all terms defined in this Supplemental Indenture which are used
and not otherwise defined herein shall have the meanings they are given in the
Indenture;
(b) the provisions of general application stated in Section 1.01 of
the Indenture shall apply to this Supplemental Indenture, except that the words
"HEREIN," "HEREOF," "HERETO" and "HEREUNDER" and other words of similar import
refer to this Supplemental Indenture as a whole and not to the Indenture or any
particular Article, Section or other subdivision of the Indenture or this
Supplemental Indenture;
(c) Section 1.01 of the Indenture is amended by inserting the
following additional definitions:
"ATTRIBUTABLE DEBT" means, as to any particular lease under which any
Person is at the time liable for a term of more than 12 months, at any date as
of which the amount thereof is to be determined, the total net amount of rent
required to be paid by such Person under such lease during the remaining term
thereof (excluding any subsequent renewal or other extension options held by the
lessee), discounted from the respective due dates thereof to such date at the
interest rate inherent in such lease (such rate to be determined by any two of
the following: the President, any Vice President, the Treasurer and the
Controller of the Company), compounded annually. The net amount of rent required
to be paid under any such lease for any such period shall be the aggregate
amount of the rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of maintenance and repairs,
services, insurance, taxes, assessments, water rates and similar charges and
contingent rents (such as those based on sales). In the case of any lease which
is terminable by the lessee upon the payment of penalty, such net amount of rent
shall include the lesser of (i) the total discounted net amount of rent, as the
case may be, and (ii) the amount of such penalty (in which event no rent shall
be considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated).
"CONSOLIDATED NET ASSETS" means the total amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any thereof which are by their
terms extendible or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount thereof is being
computed) and (ii) appropriate adjustments on account of minority interests of
other Persons holding stock of the Company's subsidiaries, all as set forth on
the most recent balance sheet of the Company and its Consolidated Subsidiaries
and prepared in accordance with GAAP.
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"CONSOLIDATED SUBSIDIARY" means, at any date, any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"DEBT" means any notes, bonds, debentures, or other similar evidences
of indebtedness for money borrowed.
"FUNDED DEBT" means indebtedness created, assumed or guaranteed by a
Person for money borrowed which matures by its terms, or is renewable by the
borrower to a date, more than a year after the date of original creation,
assumption or guarantee.
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied on a basis consistent (except for changes concurred in by
the Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries.
"LIEN" means, with respect to any asset, any pledge, mortgage, charge,
encumbrance or security interest in respect of such asset; PROVIDED that any
transaction (including, without limitation, any sale of accounts receivable)
which is treated as a sale of assets under GAAP shall be so treated hereunder
and any asset which is so sold shall not be deemed subject to a Lien. It is
understood that a contractual grant of a right of set-off does not create a Lien
in the absence of an agreement to maintain a balance against which such right
may be exercised.
"PRINCIPAL PROPERTY" means any manufacturing plant or distribution
facility, together with the land upon which it is erected and fixtures
comprising a part thereof, owned by the Company or any Restricted Subsidiary and
located in the United States, the gross book value (without deduction of any
reserve for depreciation) of which on the date as of which the determination is
being made in an amount which exceeds 1% of Consolidated Net Assets, other than
any such manufacturing plant or distribution facility or any portion thereof or
any such fixture (together with the land upon which it is erected and fixtures
comprising a part thereof) (i) which is financed by industrial development
bonds, industrial revenue bonds, pollution control bonds or other similar debt
issued or guaranteed by the United States of America or any State thereof, or
any department, agency, instrumentality or political subdivision of the United
States of America or any State thereof or (ii) which, in the opinion of the
Board of Directors as evidenced by a Board Resolution, is not of material
importance to the total business conducted by the Company and its Subsidiaries,
taken as a whole.
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"RESTRICTED SUBSIDIARY" means any Subsidiary of which, at the time of
determination, all of the outstanding capital stock (other than directors'
qualifying shares) is owned by the Company directly or indirectly and which, at
the time of determination, is primarily engaged in manufacturing, except a
Subsidiary (a) which neither transacts any substantial portion of its business
nor regularly maintains any substantial portion of its fixed assets within the
United States, (b) which is engaged primarily in the finance business including,
without limitation thereto, financing the operations of, or the purchase of
products which are products of or incorporate products of, the Company or its
subsidiaries, or (c) which is primarily engaged in ownership and development of
real estate, construction of buildings, or related activities, or a combination
of the foregoing. In the event that there shall at any time be a question as to
whether a Subsidiary is primarily engaged in manufacturing or is described in
the foregoing clause (a), (b) or (c), such matter shall be determined for all
purposes of this Indenture by a Board Resolution.
ARTICLE 2
THE SERIES OF NOTES
SECTION 2.01. TITLE. There shall be a series of Securities designated
the "Medium Term Notes, Series B, Due Nine Months or More from Date of Issue"
(the "NOTES").
SECTION 2.02. PRINCIPAL AMOUNT. The aggregate principal amount of the
Notes which may be authenticated and delivered under this Supplemental Indenture
shall not, except as permitted by the provisions of the Indenture, exceed
$150,000,000.
SECTION 2.03. FORM OF NOTES. The form of the Notes shall be
substantially in the form of Exhibit A attached hereto. The terms of such Notes
are herein incorporated by reference and are part of this Supplemental
Indenture. The Notes shall be registered in such names, shall be in such amounts
and shall have such other specific terms contemplated in the form of Note
attached hereto as Exhibit A, as shall be communicated by the Company to the
Trustee in accordance with the administrative procedures, as in effect from time
to time, established to provide for the issuance of the Notes.
SECTION 2.04. DEPOSITORY. The Depository for any Notes issued as
Global Securities shall be The Depository Trust Company in ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇-▇
("DTC") or any successor Depository appointed by the Company within 90 days of
the termination of the services of DTC (or any successor to DTC).
ARTICLE 3
EVENTS OF DEFAULT
SECTION 3.01. ADDITIONAL EVENT OF DEFAULT APPLICABLE TO THE NOTES.
Pursuant to Section 5.01(g) of the Indenture, an "Event of Default" shall be
deemed to occur with respect to the Notes if there is a default under any bonds,
debentures, notes or other evidences of indebtedness for money borrowed by the
Company (including a default with respect to Securities of any series other than
the Notes) or under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any indebtedness for
money borrowed by the Company, whether such indebtedness exists as of the date
of this Supplemental Indenture or shall hereafter be created, which default
shall have resulted in such indebtedness in an aggregate principal amount
exceeding $25,000,000 becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without such
acceleration having been rescinded or annulled within a period of 60 days after
there shall have been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 50% in
principal amount of the Outstanding Notes a written notice specifying such
default and requiring the Company to cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
PROVIDED, HOWEVER, that if, prior to a declaration of acceleration of the
maturity of the Notes or the entry of judgment in favor of the Trustee in a suit
pursuant to Section 5.03 of the Indenture, such default under such bonds,
debentures, notes or other evidences of indebtedness shall be remedied or cured
by the Company or waived by the holders of such indebtedness, then the Event of
Default under the Indenture by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon the part of
either the Trustee or any of the Holders of Notes.
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ARTICLE 4
COVENANTS
SECTION 4.01. ADDITIONAL COVENANTS APPLICABLE TO THE NOTES. In addition
to the covenants set forth in Article 10 of the Indenture, the following
covenants apply with respect to the Notes:
(a) LIMITATIONS UPON LIENS. The Company covenants and agrees for the
benefit of the Notes that neither it nor any Subsidiary will create, incur,
issue or assume any Debt secured by any Lien on any Principal Property now owned
or hereafter acquired by the Company or any Restricted Subsidiary, and that the
Company or any Subsidiary will not create, incur, issue or assume any Debt
secured by any Lien on any shares of stock or Debt now existing or owed or
hereafter created or acquired of any Restricted Subsidiary (such shares of stock
or Debt of any Restricted Subsidiary being called "Restricted Securities")
without in any such case effectively providing concurrently with the incurrence,
creation, issuance or assumption of any such Debt or the grant of any Lien with
respect to any such Debt that the Notes (together with, if the Company shall so
determine, any other Debt of the Company or such Subsidiary then existing or
thereafter created which is not subordinate to the Notes) shall be secured
equally and ratably with (or prior to) such secured Debt, so long as such
secured Debt shall be so secured. The foregoing restriction shall not, however,
apply to Debt secured by:
(i) Liens on any Principal Property or Restricted Securities
of the Company or any Subsidiary existing on the date of the original
issuance by the Company of the Notes;
(ii) Liens on any Principal Property or Restricted Securities
of any corporation existing at the time such corporation becomes a
Restricted Subsidiary or is merged with or into or consolidated with
the Company or Restricted Subsidiary, or at the time of a sale, lease
or other disposition of the properties of a corporation as an entirety
or substantially as an entirety to the Company or a Restricted
Subsidiary, or arising thereafter pursuant to contractual commitments
entered into prior to and not in contemplation of such corporation
becoming a Restricted Subsidiary or not in contemplation of any such
merger or consolidation or any such sale, lease or other disposition;
(iii) Liens on any Principal Property or Restricted
Securities of the Company or any Subsidiary existing at the time of
acquisition thereof (including acquisition through merger or
consolidation) or securing the payment of all or any part of the
purchase price or construction cost
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thereof or securing any Debt incurred prior to, at the time of or
within 360 days after, the acquisition of such Principal Property or
Restricted Securities or the completion of any such construction,
whichever is later, for the purposes of financing all or any part of
the purchase price or construction cost thereof;
(iv) Liens on any Principal Property to secure all or any
part of the cost of development, operation, construction, alteration,
repair or improvement of all or any part of such Principal Property, or
to secure Debt incurred prior to, at the time of or within 360 days
after, the completion of such development, operation, construction,
alteration, repair or improvement, whichever is later, for the purpose
of financing all or any part of such cost;
(v) Liens which secure Debt owing by a Subsidiary to the
Company or to a Restricted Subsidiary;
(vi) Liens on the property of the Company or a Restricted
Subsidiary in favor of the United States of America or any State
thereof, or any department, agency, instrumentality or political
subdivision of the United States of America or any State thereof, (A)
to secure partial progress, advance or other payments pursuant to any
contract or statute, (B) securing indebtedness incurred to finance all
or any part of the purchase price or cost of constructing, installing
or improving the property subject to such mortgages including mortgages
to secure Debt of the pollution control or industrial revenue bond
type, or (C) securing indebtedness issued or guaranteed by the United
States, any State, any foreign country or any department, agency,
instrumentality or political subdivision of any such jurisdiction; and
(vii) any extension, renewal, substitution or replacement of
any of the Liens referred to in paragraphs (i) through (vi) above or
the Debt secured thereby.
Notwithstanding the foregoing, the Company and any Subsidiary may
create, incur, issue or assume Debt secured by a Lien which would otherwise be
subject to the foregoing restrictions if the aggregate principal amount of all
Debt secured by Liens on Principal Properties and Restricted Securities then
outstanding (not including any such Debt secured by Liens permitted to be
incurred pursuant to paragraphs (i) through (vii) above) plus Attributable Debt
of the Company and its Restricted Subsidiaries in respect of Sale and Leaseback
Transactions (as defined below) that would otherwise be subject to the
restrictions described in clause (b) of this Section 4.01 does not at the time
such Debt is
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incurred exceed an amount equal to 10% of Consolidated Net Assets of the
Company.
For the purposes of this Section 4.01, the giving of a guarantee which
is secured by a Lien on Principal Property or Restricted Securities, and the
creation of a Lien on Principal Property or Restricted Securities to secure Debt
which existed prior to the creation of such Lien, shall be deemed to involve the
creation of Debt in an amount equal to the principal amount guaranteed or
secured by such Lien; but the amount of Debt secured by Liens on Principal
Properties and Restricted Securities shall be computed without cumulating the
underlying indebtedness with any guarantee thereof or Lien securing the same.
(b) LIMITATIONS UPON SALES AND LEASEBACKS. The Company covenants and
agrees for the benefit of the Notes that neither it nor any Restricted
Subsidiary will enter into any arrangement after the date of the original
issuance by the Company of the Notes with any bank, insurance company or other
lender or investor (other than the Company or another Restricted Subsidiary)
providing for the leasing by the Company or any such Restricted Subsidiary of
any Principal Property for a period of more than three years, which was or is
owned or leased by the Company or a Restricted Subsidiary and which has been or
is to be sold or transferred by the Company or such Restricted Subsidiary, more
than 180 days after the completion of construction and commencement of all
operations thereof by the Company or such Restricted Subsidiary, to such lender
or investor or to any Person to whom funds have been or are to be advanced by
such lender or investor on the security of such Principal Property (herein
referred to as a "SALE AND LEASEBACK TRANSACTION") unless, either:
(i) the Company and its Restricted Subsidiaries would be
entitled, pursuant to the provisions described in clause (a) of this
Section 4.01, to incur Debt secured by a Lien on such Principal
Property in a principal amount equal to or exceeding the Attributable
Debt in respect of such Sale and Leaseback Transaction without equally
and ratably securing the Notes, or
(ii) the Company, within 180 days after the sale or transfer,
applies or causes a Restricted Subsidiary to apply an amount equal to
the net proceeds of such sale or transfer (as determined by any two of
the following: the President, any Vice President, the Treasurer and the
Controller of the Company) to the retirement of Securities of any
series or other Funded Debt of the Company (other than Funded Debt
subordinated to the Notes) or Funded Debt of a Restricted Subsidiary;
PROVIDED that the amount to be so applied shall be reduced by (A) the
principal amount of Notes delivered within 180 days after such sale or
transfer to the Trustee
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for retirement and cancellation, and (B) the principal amount of any
such Funded Debt of the Company or a Restricted Subsidiary, other than
Notes voluntarily retired by the Company or a Restricted Subsidiary
within 180 days after such sale or transfer to the Trustee for
retirement and cancellation, excluding in the case of both (A) and (B),
retirement pursuant to any mandatory sinking fund payment or any
mandatory prepayment provision or by payment at maturity.
(c) RESTRICTIONS ON FUNDED DEBT OF RESTRICTED SUBSIDIARIES. The
Company covenants and agrees for the benefit of the Notes that it will not
permit any Restricted Subsidiary to create, incur, issue, assume or guarantee
any Funded Debt. This restriction will not apply if:
(i) the Company or such Restricted Subsidiary could create
Debt secured by Liens in accordance with clause (a) of this Section
4.01, or enter into a Sale or Leaseback Transaction in accordance with
clause (b) of this Section 4.01, in an amount equal to such Funded
Debt, without equally and ratably securing the Notes;
(ii) such Funded Debt existed on the date of the original
issuance by the Company of the Notes;
(iii) such Funded Debt is owed to the Company or any
Subsidiary;
(iv) such Funded Debt existed at the time the corporation
that issued such Funded Debt became a Restricted Subsidiary, or was
merged with or into or consolidated with such Restricted Subsidiary, or
at the time of a sale, lease or other disposition of the properties of
such corporation as an entirety to such Restricted Subsidiary, or
arising thereafter (A) otherwise than in connection with the borrowing
of money arranged thereafter and (B) pursuant to contractual
commitments entered into prior to and not in contemplation of such
corporation becoming a Restricted Subsidiary and not in contemplation
of any such merger or consolidation or any such sale, lease or other
disposition;
(v) such Funded Debt is guaranteed by the Company;
(vi) such Funded Debt is guaranteed by a governmental agency;
(vii) such Funded Debt is issued, assumed or guaranteed in
connection with, or with a view to, compliance by such Restricted
Subsidiary with the requirements of any program adopted by any federal,
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state or local governmental authority and applicable to such Restricted
Subsidiary and providing financial or tax benefits to such Restricted
Subsidiary which are not available directly to the Company;
(viii) such Funded Debt is issued, assumed or guaranteed to
pay all or any part of the purchase price or the construction cost of
property or equipment acquired or constructed by a Restricted
Subsidiary, provided such Funded Debt is incurred within 360 days after
acquisition, completion of construction or commencement of full
operation of such property, whichever is later;
(ix) such Funded Debt is nonrecourse; or
(x) such Funded Debt is incurred for the purpose of
extending, renewing, substituting, replacing or refunding Funded Debt
permitted by the foregoing.
Notwithstanding the foregoing, any Restricted Subsidiary may create,
incur, issue, assume or guarantee Funded Debt which would otherwise be subject
to the foregoing restrictions in an aggregate principal amount which, together
with the aggregate outstanding principal amount of all other Funded Debt of the
Company's Restricted Subsidiaries which would otherwise be subject to the
foregoing restrictions (not including Funded Debt permitted to be incurred
pursuant to clauses (i) through (x) above), does not at the time such Funded
Debt is incurred exceed an amount equal to 10% of Consolidated Net Assets.
ARTICLE 5
DEFEASANCE
SECTION 5.01. DEFEASANCE. The provisions of Sections 13.02 and 13.03
of the Indenture will apply to the Notes.
SECTION 5.02. COVENANT DEFEASANCE. Section 13.03 of the Indenture is
amended by (a) deleting "and" where it appears after "Section 5.01(f)" and
inserting a comma in its place and (b) inserting "and any other obligations
specified in a Board Resolution or in one or more indentures supplemental
hereto" after "(if Section 5.01(g) is specified as applicable to the Securities
of such series)".
SECTION 5.03. ADDITIONAL COVENANT DEFEASANCE. In addition to the
obligations referred to in Section 13.03 of the Indenture, "covenant
defeasance",
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as defined in such Section, will also apply to the obligations of the Company
set forth in clauses (a) and (b) of Section 4.01 of this Supplemental Indenture.
ARTICLE 6
MISCELLANEOUS PROVISIONS
SECTION 6.01. SUPPLEMENTAL INDENTURE. The Indenture, as supplemented
and amended by this Supplemental Indenture, is in all respects hereby adopted,
ratified and confirmed.
SECTION 6.02. COUNTERPARTS. This Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 6.03. GOVERNING LAW. This Supplemental Indenture and the Form
of Note attached hereto as an exhibit shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, as of the day and year first written above.
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President - Chief Finanical Officer
THE BANK OF NEW YORK, as Trustee
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
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Exhibit A
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY") (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, 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.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. __________ __________ ___________________
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
MEDIUM-TERM NOTE SERIES ___
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATED:
INTEREST PAYMENT DATE(S) DEFAULT RATE: %
[ ] __________ and __________
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN AUTHORIZED
DATE(S): ORIGINAL ISSUE DENOMINATION:
DISCOUNT NOTE [ ] $1,000 and integral multiples
Issue Price: % thereof
[ ] Other
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
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▇▇▇▇▇▇ & ▇▇▇▇▇ Corporation, a Tennessee corporation (the "Company",
which term includes any successor entity under the Indenture hereinafter
referred to), for value received, hereby promises to pay to , or
registered assigns, the principal sum of , on the Stated Maturity
Date specified above (or any Redemption Date or Repayment Date, each as
defined on the reverse hereof) (each such Stated Maturity Date, Redemption
Date or Repayment Date being hereinafter referred to as the "Maturity Date"
with respect to the principal repayable on such date) and to pay interest
thereon, at the Interest Rate per annum specified above, until the principal
hereof is paid or duly made available for payment, and (to the extent that the
payment of such interest shall be legally enforceable) at the Default Rate per
annum specified above on any overdue principal, premium or interest.
The Company will pay interest in arrears on each Interest Payment Date, if
any, specified above (each, an "Interest Payment Date"), commencing with the
first Interest Payment Date next succeeding the Original Issue Date specified
above, and on the Maturity Date; PROVIDED, HOWEVER, that if the Original Issue
Date occurs between a Record Date (as defined below) and the next succeeding
Interest Payment Date, interest payments will commence on the second Interest
Payment Date next succeeding the Original Issue Date to the holder of this
Note on the Record Date with respect to such second Interest Payment Date.
Interest on this Note will be computed on the basis of a 360-day year of
twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (each, a "Record Date"); PROVIDED, HOWEVER, that interest payable
on the Maturity Date will be payable to the person to whom the principal hereof
and premium, if any, hereon shall be payable. Any such interest not so
punctually paid or duly provided for ("Defaulted Interest") will forthwith cease
to be payable to the holder on any 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 (the "Special Record Date") for the payment of such Defaulted
Interest to be fixed by the Trustee hereinafter referred to, notice whereof
shall be given to the holder of this Note by the Trustee not less than 10
calendar days prior to such Special Record Date or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any
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securities exchange on which this Note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided for in the
Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in The City of New York, currently located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other paying agency in The City of New York, as
the Company may determine; PROVIDED, HOWEVER, that payment to the Depository may
be made by wire transfer to the account designated by the Depository in writing.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any, or
interest shall be made on the next succeeding Business Day with the same force
and effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be, to the date of such
payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York.
The Company is obligated to make payment of principal, premium, if any,
and interest in respect of this Note in United States dollars.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified on the face hereof, in an
addendum hereto, which further provisions shall have the same force and effect
as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
By:
------------------------------------
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK
As Trustee
By:
------------------------------------
Authorized Signatory
Dated:
---------------------------------
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[REVERSE OF NOTE]
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
MEDIUM-TERM NOTE SERIES __
This Note is one of a duly authorized series of Securities (the
"Securities") of the Company issued and to be issued under an Indenture, dated
as of August 1, 1998, as amended, modified or supplemented from time to time
(the "Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes Series ___, Due Nine Months or More From Date
of Issue" (the "Notes"). All terms used but not defined in this Note or in an
addendum hereto shall have the meanings assigned to such terms in the Indenture
or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$1,000 and integral multiples thereof or the
minimum authorized denomination specified on the face hereof (the "Authorized
Denomination").
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or the
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S.$1,000 or such minimum Authorized Denomination), at
the Redemption Price (as defined below), together with unpaid interest accrued
thereon to the date fixed for redemption (each, a "Redemption Date"), on notice
given no more than 60 nor less than 30 calendar days prior to the Redemption
Date and in accordance with the provisions of the Indenture. The "Redemption
Price" shall initially be the Initial Redemption Percentage specified on the
face hereof multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary of
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the Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof until the Redemption Price is 100% of unpaid
principal amount to be redeemed. In the event of redemption of this Note in part
only, a new Note of like tenor for the unredeemed portion hereof and otherwise
having the same terms as this Note shall be issued in the name of the holder
hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued thereon to the date fixed for repayment (each, a
"Repayment Date"). For this Note to be repaid, this Note must be received,
together with the form hereon entitled "Option to Elect Repayment" duly
completed, by the Trustee at its corporate trust office not more than 60 nor
less than 30 calendar days prior to the Repayment Date. Exercise of such
repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(1) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this Note
(if applicable), multiplied by the Initial Redemption Percentage (as adjusted by
the Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption that
the maturity of this Note will not be accelerated. If the period from the
Original
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Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of the
yield for an entire compounding period will be accrued. If the Initial Period is
longer than the compounding period, then such period will be divided into a
regular compounding period and a short period, with the short period being
treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
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 Securities at any time by the
Company and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Company with certain provisions
of the Indenture. Furthermore, provisions in the Indenture permit the holders of
not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, in certain instances, to waive, on behalf of all of
the holders of Securities of such series, 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 other Notes 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 principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of
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the Company upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal hereof and any
premium or interest hereon are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof 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 or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by an officer of the Company in his/her capacity
as an officer of the Company which has been formed as a Tennessee corporation,
and not individually, and neither the trustees, officers or shareholders of the
Company shall be bound or have any personal liability hereunder or thereunder.
Each party hereto shall look solely to the assets of the Company for
satisfaction of any liability of the Company in respect of this Note and all
documents, agreements, understandings and arrangements relating to any
transaction contemplated hereby or thereby and will not seek recourse or
commence any action against any of the trustees, officers or shareholders of the
Company or any of their personal assets for the performance or payment of any
obligation hereunder or thereunder. The foregoing shall also apply to any future
documents, agreements, understandings, arrangements and transactions between the
parties hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and
transfer(s) unto ______________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
-----------------------------
/----------------------------/
(Please Print or Type Name and Address
Including Postal Zip Code of Assignee)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints
------------------------------------------------------------
------------------------------------------------------------------
______to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:_____________________________
Signature Guaranteed
_________________ NOTICE: Signature must be guaranteed
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within Note in every particular, without
alteration or enlargement or any change whatever.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s)
the Company to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
------------------------------------------------------------------
(Please print or typewrite name and address of the
undersigned)
For this Note to be repaid, the Trustee must receive at its
corporate trust office in The City of New York, currently located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, this Note with this "Option to Elect
Repayment" form duly completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of U.S.$1,000)
which the holder elects to have repaid and specify the denomination or
denominations (which shall be an Authorized Denomination) of the Notes to be
issued to the holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
Principal Amount
to be Repaid: $
Date: _________
Notice: The signature(s) on this Option to
Elect Repayment correspond(s) with the
name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
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