[Conformed Copy]
EXHIBIT 4.2
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
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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.
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"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
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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
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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:
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"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.
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(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.
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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.
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(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
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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
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attached hereto is 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
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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.
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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: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------- ---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Treasurer
[Corporate Seal] The First National Bank of Chicago,
Trustee
Attest:___________________________ By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Trust Officer
State of North Carolina: )
) ss.:
County of ▇▇▇▇▇▇: )
On this 23/rd/ day of February, 1999, before me personally came ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say he is a duly
elected or appointed, qualified and serving officer of ▇▇▇▇'▇ COMPANIES, INC.,
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]
▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Notary Public, State of North Carolina
No.
Qualified in the County of ▇▇▇▇▇▇
Commission Expires
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]
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Notary Public, State of Illinois
No.
Qualified in the County of ▇▇▇▇
Commission Expires
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.
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 144A INSIDE THE UNITED
A-2
STATES, 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.
A-3
▇▇▇▇'▇ 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 of December 1, 1995 (as supplemented
A-4
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 Statement with respect to the Debentures with the Commission on or
prior to the 150/th/ calendar day following the Closing Time, (ii) the
Commission does not
A-5
declare such Exchange Offer Registration Statement effective on or prior to the
180/th/ calendar day following the Closing Time, (iii) the Exchange Offer is not
consummated on or prior to the 30/th/ 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 210/th/ 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 on
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 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.
A-6
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
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
A-7
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
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
[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.
B-3
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
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
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.
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 $______________ aggregate principal
amount of Debentures, we confirm that such sale has been effected pursuant to
and in accordance with Rule 144A. We are aware that the transfer of Debentures
to us is being made in reliance on the exemption from the provisions of Section
5 of the Securities Act provided by Rule 144A. Prior to the date of this
Certificate, we have been given the opportunity to obtain from the Company the
information referred to in Rule 144A(d)(4), and have either declined such
opportunity or have received such information.
Each of you is entitled to rely upon this Certificate and is irrevocably
authorized to produce this Certificate or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.
Very truly yours,
[Name of PURCHASER]
By:________________________________
Name:
Title:
Address:
Date of this Certificate: _________
EXHIBIT D
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby transfers to
(PRINT NAME AND ADDRESS OF TRANSFEREE)
U.S.$_______________ 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.
