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Exhibit 4.01
This Note is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of the
Depository named below or a nominee of the Depository. This Note is not
exchangeable for Notes registered in the name of a Person other than the
Depository or its nominee except in the limited circumstances described herein
and in the Indenture, and no transfer of this Note (other than a transfer of
this Note as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository) may be registered except in the limited circumstances described
herein.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation (the
"Depository"), to the Company or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of the Depository (and any payment 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 inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
5.875% NOTES DUE MARCH 15, 2006
REGISTERED REGISTERED
CUSIP: 79549B GW 1
ISIN: US79549BGW19
Common Code: 12696124
No. R-0001 $_00,000,000
XXXXXXX XXXXX XXXXXX HOLDINGS INC., a New York corporation (the
"Company", which term includes any successor Person under the Indenture), for
value received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of $_00,000,000 on March 15, 2006 and to pay interest thereon from
and including March 23, 2001 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on March 15 and
September 15 of each year, commencing September 15, 2001, at the rate of 5.875%
per annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Note is registered at the close of business on the Record Date for
such interest, which shall be the February 28 (or February 29 in the case of the
March 15, 2004 Interest Payment Date) or August 31 (whether or not a Business
Day) next preceding such Interest Payment Date.
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Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Record Date and may
either be paid to the Person in whose name this Note is registered at the close
of business on a subsequent Record Date, such subsequent Record Date to be not
less than five days prior to the date of payment of such defaulted interest,
notice whereof shall be given to Holders of Notes of this series not less than
15 days prior to such subsequent Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.
Interest hereon will be calculated on the basis of a 360-day
year comprised of twelve 30-day months.
If either a date for payment of principal or interest on the
Notes or the Maturity of the Notes falls on a day that is not a Business Day,
the related payment of principal or interest will be made on the next succeeding
Business Day as if made on the date the payment was due. No interest will accrue
on any amounts payable for the period from and after the date for payment of
principal or interest on the Notes or the Maturity of the Notes. For these
purposes, "Business Day" means any day which is a day on which commercial banks
settle payments and are open for general business in The City of New York.
Payment of the principal of and interest on this Note will be
made at the office or agency of the Trustee maintained for that purpose in The
City of New York.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee or by an authenticating agent on behalf of 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 under its corporate seal.
Dated: March 23, 2001
XXXXXXX XXXXX BARNEY HOLDINGS INC.
By:
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Title: Executive Vice President and Treasurer
ATTEST:
By:
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Assistant Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:
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Authorized Officer
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XXXXXXX XXXXX XXXXXX HOLDINGS INC.
5.875% NOTE DUE MARCH 15, 2006
This Security is one of a duly authorized issue of Debt
Securities of the Company (herein called the "Securities"), issued and to be
issued under an Indenture dated as of January 18, 1994, as supplemented by the
First Supplemental Indenture dated as of November 28, 1997 and the Second
Supplemental Indenture dated as of July 1, 1999 (as so supplemented, herein
called the "Indenture"), between the Company and The Chase Manhattan Bank
(herein called 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 Security is one of the series
designated as set forth above, limited in aggregate principal amount to
$1,000,000,000.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of all the Securities of this
series 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
the entire indebtedness of this Security upon compliance by the Company with
certain conditions set forth in Sections 4.01 and 15.02 thereof, which
provisions apply to this Security.
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 of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securities
of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company 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 Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
This Security is a Global Security registered in the name of a
nominee of the Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee only
in the limited circumstances hereinafter described. Unless and until it is
exchanged in whole or in part for definitive Securities in certificated form,
this Security may not be transferred except as a whole by the Depository to a
nominee of the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository.
The Securities represented by this Global Security are
exchangeable for definitive Securities in certificated form of like tenor as
such Securities in denominations of $1,000 and integral multiples thereof only
if (i) the Depository notifies the Company that it is unwilling or unable to
continue as Depository for the Securities or (ii) the Depository ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, or (iii) the Company in its sole discretion decides to allow the
Securities to be exchanged for definitive Securities in registered form. Any
Securities that are exchangeable pursuant to the preceding sentence are
exchangeable for certificated Securities issuable in authorized denominations
and registered in such names as the Depository shall direct. As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
definitive Securities in certificated form is registrable in the register
maintained by the Company in The City of New York for such purpose, upon
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surrender of the definitive Security for registration of transfer at the office
or agency of the registrar, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the registrar
duly executed by, the holder thereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. Subject to the foregoing,
this Security is not exchangeable, except for a Global Security or Global
Securities of this issue of the same principal amount to be registered in the
name of the Depository or its nominee.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
The Company will pay additional amounts ("Additional Amounts")
to the beneficial owner of any Note that is a non-United States person in order
to ensure that every net payment on such Note will not be less, due to payment
of U.S. withholding tax, than the amount then due and payable. For this purpose,
a "net payment" on a Note means a payment by the Company or a paying agent,
including payment of principal and interest, after deduction for any present or
future tax, assessment or other governmental charge of the United States. These
Additional Amounts will constitute additional interest on the Note.
The Company will not be required to pay Additional Amounts,
however, in any of the circumstances described in items (1) through (13) below.
(1) Additional Amounts will not be payable if a payment on a Note is
reduced as a result of any tax, assessment or other governmental
charge that is imposed or withheld solely by reason of the
beneficial owner:
(a) having a relationship with the United States as a citizen,
resident or otherwise;
(b) having had such a relationship in the past or
(c) being considered as having had such a relationship.
(2) Additional Amounts will not be payable if a payment on a Note is
reduced as a result of any tax, assessment or other governmental
charge that is imposed or withheld solely by reason of the
beneficial owner:
(a) being treated as present in or engaged in a trade or
business in the United States;
(b) being treated as having been present in or engaged in a
trade or business in the United States in the past or
(c) having or having had a permanent establishment in the
United States.
(3) Additional Amounts will not be payable if a payment on a Note is
reduced as a result of any tax, assessment or other governmental
charge that is imposed or withheld solely by reason of the
beneficial owner being or having been a:
(a) personal holding company;
(b) foreign personal holding company;
(c) foreign private foundation or other foreign tax-exempt
organization;
(d) passive foreign investment company;
(e) controlled foreign corporation or
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(f) corporation which has accumulated earnings to avoid United
States federal income tax.
(4) Additional Amounts will not be payable if a payment on a Note is
reduced as a result of any tax, assessment or other governmental
charge that is imposed or withheld solely by reason of the
beneficial owner owning or having owned, actually or
constructively, 10 percent or more of the total combined voting
power of all classes of stock of the Company entitled to vote.
For purposes of items (1) through (4) above, "beneficial owner" means a
fiduciary, settlor, beneficiary, member or shareholder of the holder if the
holder is an estate, trust, partnership, limited liability company, corporation
or other entity, or a Person holding a power over an estate or trust
administered by a fiduciary holder.
(5) Additional Amounts will not be payable to any beneficial owner of
a Note that is a:
(a) fiduciary;
(b) partnership;
(c) limited liability company or
(d) other fiscally transparent entity
or that is not the sole beneficial owner of the Note, or any
portion of the Note. However, this exception to the obligation to
pay Additional Amounts will only apply to the extent that a
beneficiary or settlor in relation to the fiduciary, or a
beneficial owner or member of the partnership, limited liability
company or other fiscally transparent entity, would not have been
entitled to the payment of an Additional Amount had the
beneficiary, settlor, beneficial owner or member received
directly its beneficial or distributive share of the payment.
(6) Additional Amounts will not be payable if a payment on a Note is
reduced as a result of any tax, assessment or other governmental
charge that is imposed or withheld solely by reason of the
failure of the beneficial owner or any other person to comply
with applicable certification, identification, documentation or
other information reporting requirements. This exception to the
obligation to pay Additional Amounts will only apply if
compliance with such reporting requirements is required by
statute or regulation of the United States or by an applicable
income tax treaty to which the United States is a party as a
precondition to exemption from such tax, assessment or other
governmental charge.
(7) Additional Amounts will not be payable if a payment on a Note is
reduced as a result of any tax, assessment or other governmental
charge that is collected or imposed by any method other than by
withholding from a payment on a Note by the Company or a paying
agent.
(8) Additional Amounts will not be payable if a payment on a Note is
reduced as a result of any tax, assessment or other governmental
charge that is imposed or withheld by reason of a change in law,
regulation, or administrative or judicial interpretation that
becomes effective more than 15 days after the payment becomes due
or is duly provided for by Xxxxxxx Xxxxx Xxxxxx Holdings,
whichever occurs later.
(9) Additional Amounts will not be payable if a payment on a Note is
reduced as a result of any tax, assessment or other governmental
charge that is imposed or withheld by reason of the presentation
by the beneficial owner of a Note for payment more than 30 days
after the date on which such payment becomes due or is duly
provided for by Xxxxxxx Xxxxx Barney Holdings, whichever occurs
later.
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(10) Additional Amounts will not be payable if a payment on a Note is
reduced as a result of any:
(a) estate tax;
(b) inheritance tax;
(c) gift tax;
(d) sales tax;
(e) excise tax;
(f) transfer tax;
(g) wealth tax;
(h) personal property tax or
(i) any similar tax, assessment or other governmental charge.
(11) Additional Amounts will not be payable if a payment on a Note is
reduced as a result of any tax, assessment, or other governmental
charge required to be withheld by any paying agent from a payment
of principal or interest on a Note if such payment can be made
without such withholding by any other paying agent.
(12) Additional amounts will not be payable if a payment on a note is
reduced as a result of any tax, assessment or other governmental
charge that is required to be made pursuant to any European Union
directive on the taxation of savings income or any law
implementing or complying with, or introduced to conform to, any
such directive.
(13) Additional Amounts will not be payable if a payment on a Note is
reduced as a result of any combination of items (1) through (12)
above.
Except as specifically provided herein, the Company will not be required
to make any payment of any tax, assessment or other governmental charge imposed
by any government or a political subdivision or taxing authority of any
government.
As used in this Note, "United States person" means:
(a) any individual who is a citizen or resident of the United States;
(b) any corporation, partnership or other entity created or organized
in or under the laws of the United States;
(c) any estate if the income of such estate falls within the federal
income tax jurisdiction of the United States regardless of the
source of such income and
(d) any trust if a United States court is able to exercise primary
supervision over its administration and one or more United States
persons have the authority to control all of the substantial
decisions of the trust.
Additionally, "non-United States person" means a Person who is not a
United States person, and "United States" means the United States of America,
including the States and the District of Columbia, its territories, its
possessions and other areas within its jurisdiction.
Except as provided below, the Notes may not be redeemed prior to
maturity.
(1) The Company may, at its option, redeem the Notes if:
(a) the Company becomes or will become obligated to pay
Additional Amounts as described above;
(b) the obligation to pay Additional Amounts arises as a
result of any change in the laws, regulations or rulings
of the United States, or an official position regarding
the application or interpretation of such laws,
regulations or rulings, which change is announced or
becomes effective on or after March 16, 2001 and
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(c) the Company determines, in its business judgment, that the
obligation to pay such Additional Amounts cannot be
avoided by the use of reasonable measures available to it,
other than substituting the obligor under the Notes or
taking any action that would entail a material cost to the
Company.
(2) The Company may also redeem the Notes, at its option, if:
(a) any act is taken by a taxing authority of the United
States on or after March 16, 2001, whether or not such act
is taken in relation to the Company or any affiliate, that
results in a substantial probability that the Company will
or may be required to pay Additional Amounts as described
above;
(b) the Company determines, in its business judgment, that the
obligation to pay such Additional Amounts cannot be
avoided by the use of reasonable measures available to it,
other than substituting the obligor under the Notes or
taking any action that would entail a material cost to the
Company and
(c) the Company receives an opinion of independent counsel to
the effect that an act taken by a taxing authority of the
United States results in a substantial probability that
the Company will or may be required to pay the
Additional Amounts described under above, and delivers
to the Trustee a certificate, signed by a duly authorized
officer, stating that based on such opinion the Company is
entitled to redeem the Notes pursuant to their terms.
Any redemption of the Notes as set forth in clauses (1) or (2) above shall be in
whole, and not in part, and will be made at a redemption price equal to 100% of
the principal amount of the Notes Outstanding plus accrued interest thereon to
the date of redemption. Holders shall be given not less than 30 days nor more
than 60 days prior notice by the Company of the date fixed for such redemption.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture. The Notes are
governed by the laws of the State of New York.
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