FIFTH SUPPLEMENTAL INDENTURE Dated as of September 11, 2007 between LOWE’S COMPANIES, INC. and THE BANK OF NEW YORK TRUST COMPANY, N.A. as Trustee Supplemental to the Amended and Restated Indenture Dated as of December 1, 1995 Creating a Series of...
Exhibit
4.1
__________________________________________
FIFTH
SUPPLEMENTAL INDENTURE
Dated
as
of September 11, 2007
___________________________________________
between
XXXX’X
COMPANIES, INC.
and
THE
BANK OF
NEW YORK TRUST COMPANY, N.A.
as
Trustee
___________________________________________
Supplemental
to the Amended and Restated Indenture
Dated
as
of December 1, 1995
___________________________________________
Creating
a Series of Securities designated
5.60%
Notes due 2012,
Creating
a Series of Securities designated
6.10%
Notes due 2017,
and
Creating
a Series of Securities designated
6.65%
Notes due 2037
FIFTH
SUPPLEMENTAL INDENTURE, dated as of September 11, 2007 (this “Fifth
Supplemental Indenture”),
between Xxxx’x
Companies, Inc.,
a
corporation duly organized and existing under the laws of the State of North
Carolina (the “Company”),
having its principal office at 1000 Xxxx’x Boulevard, Mooresville, North
Carolina 28117, and The
Bank
of New York Trust Company, N.A.,
a
national banking association duly organized and existing under the laws of
the
United States, as Trustee (the “Trustee”
or
the
“Successor
Trustee”)
as
successor trustee to X.X. Xxxxxx Trust Company, National Association (the
“Resigning
Trustee”),
pursuant to that certain Instrument of Resignation, Appointment and Acceptance,
dated as of April 21, 2004, (the “Resignation
Instrument”).
W
I T N E S S E T H :
WHEREAS,
the Company has heretofore executed and delivered to the Resigning Trustee
an
Amended and Restated Indenture, dated as of December 1, 1995 (the “Base
Indenture”)
as
supplemented and amended by this Fifth Supplemental Indenture (together with
the
Base Indenture, the “Indenture”),
providing for the issuance from time to time of its unsecured unsubordinated
debentures, notes or other evidences of indebtedness (the “Securities”),
to be
issued in one or more series as provided in the Base Indenture;
WHEREAS,
pursuant to the Resignation Instrument and the applicable provisions of the
Base
Indenture, the Resigning Trustee assigned, transferred, delivered and confirmed
to the Successor Trustee all right, title and interest of the Resigning Trustee
under the Indenture, with like effect as if the Successor Trustee was originally
named as trustee under the Indenture, and the Company accepted the resignation
of the Resigning Trustee as trustee, Paying Agent, Security Registrar,
Conversion Agent and Agent under the Indenture and duly appointed the Successor
Trustee as trustee, Paying Agent, Security Registrar, Conversion Agent and
Agent
under the Indenture and confirmed to the Successor Trustee all the rights,
powers and trusts of the Resigning Trustee under the Base
Indenture;
WHEREAS,
it is provided in Section 901 of the Base 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 Base
Indenture;
WHEREAS,
the Company, in the exercise of the power and authority conferred upon and
reserved to it under the provisions of the Indenture and pursuant to appropriate
Board Resolutions and actions of its authorized officers, has duly determined
to
make, execute and deliver to the Trustee this Fifth Supplemental Indenture
in
order to establish the form and terms
of,
and
to provide for the creation and issuance of, three new series of Securities
designated as its (i) 5.60% Notes due September 15, 2012 (the “2012
Notes”),
in an
aggregate Principal Amount at Maturity of $550,000,000, (ii) 6.10% Notes due
September 15, 2017 (the “2017
Notes”),
in an
aggregate Principal amount at Maturity of $250,000,000 and (iii) 6.65% Notes
due
September 15, 2037 (the “2037
Notes”
and,
together with the 2012 Notes and the 2017 Notes, the “Notes”)
in an
aggregate Principal Amount at Maturity of $500,000,000; and
WHEREAS,
all things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee or any Authenticating Agent (as
defined in the Indenture) and issued upon the terms and subject to the
conditions of the Indenture against payment therefor, the valid, binding and
legal obligations of the Company and to make this Fifth Supplemental Indenture
a
valid and legally binding supplement to the Indenture.
NOW,
THEREFORE, in order to establish the form and terms of the series of the 2012
Notes, the series of the 2017 Notes and the series of the 2037 Notes and for
and
in consideration of the premises and of the covenants contained in the Indenture
and for other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders, as follows:
ARTICLE
I
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
101. Definitions
For
all
purposes of the Base Indenture and this Fifth Supplemental Indenture relating
to
the respective series of Notes created hereby, except as otherwise expressly
provided or unless the context otherwise requires, the terms used in this Fifth
Supplemental Indenture have the meanings assigned to them in this Article.
Each
capitalized term that is used in this Fifth Supplemental Indenture but not
defined herein shall have the meaning specified in the Base
Indenture.
“Business
Day”
means
any day other than a Saturday or Sunday or a day on which banking institutions
or trust companies in New York City are authorized or required by law,
regulation or executive order to close.
“Change
of Control”
means
the occurrence of any of the following: (a) the consummation of any transaction
(including, without limitation, any merger or consolidation) resulting in any
“person” (as that term is used in Section 13(d)(3) of the Securities and
Exchange Act of 1934)(other than the Company or one of its subsidiaries)
becoming the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Securities and Exchange Act of 1934), directly or indirectly, of more than
50%
of the Voting Stock of the Company or other voting stock into which Voting
Stock
of the Company is reclassified, consolidated, exchanged or changed, measured
by
voting power rather than number of shares; (b) the direct or indirect sale,
transfer, conveyance or other disposition (other than by way of merger or
consolidation), in a transaction or a series of related transactions, of all
or
substantially all of the assets of the Company and the assets of its
subsidiaries, taken as a whole, to one or more “persons” (as that term is
defined in the Indenture)(other than the Company or one of its subsidiaries);
or
(c) the first day on which a
2
majority
of the members of the Board of Directors of the Company are not Continuing
Directors. Notwithstanding the foregoing, a transaction shall not be considered
a Change of Control if (a) the Company becomes a direct or indirect wholly-owned
subsidiary of a holding company and (b)(y) immediately following that
transaction, the direct or indirect holders of the voting stock of the holding
company are substantially the same as the holders of voting stock of the Company
immediately prior to that transaction or (z) immediately following that
transaction no person is the beneficial owner, directly or indirectly, of more
than 50% of the voting stock of the holding company.
“Change
of Control Triggering Event”
means
the occurrence of both a Change of Control and a Rating Event.
“Comparable
Treasury Issue”
means
the United States Treasury security selected by the Quotation Agent as having
a
maturity comparable to the remaining term of the notes to be redeemed that
would
be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such notes.
“Comparable
Treasury Price”
means,
with respect to any redemption date, (i) the average of four Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains
fewer than four such Reference Treasury Dealer Quotations, the average of all
such quotations, or (iii) if only one Reference Treasury Dealer Quotation is
received, such quotation.
“Continuing
Directors”
means,
as of any date of determination, any member of our Board of Directors who (a)
was a member of the Board of Directors on the date the Notes were issued or
(b)
was nominated for election, elected or appointed to the Board of Directors
with
the approval of a majority of the continuing directors who were members of
the
Board of Directors at the time of such nomination, election or appointment
(either by a specific vote or by approval of the proxy statement of the Company
in which such member was named as a nominee for election as a director, without
objection to such nomination).
“Depositary”
means,
with respect to the Notes issuable in whole or in part in global form, DTC
and
any nominee thereof, until a successor is appointed and becomes such pursuant
to
the applicable provisions of the Indenture, and thereafter “Depositary”
shall
mean or include such successor and any nominee thereof.
“DTC”
means
The Depository Trust Company.
“Fitch”
means
Fitch Ratings.
“Global
Note”
means
a
Note issued in global form and deposited with or on behalf of the Depositary,
substantially in the form of the Note attached hereto as Exhibit X-0, Xxxxxxx
X-0 or Exhibit A-3.
“Interest
Payment Date”
has
the
meaning set forth in Section 204(a) of this Fifth Supplemental
Indenture.
3
“Investment
Grade Rating”
means
a
rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or
the
equivalent) by Moody’s and BBB- (or the equivalent) by S&P, and the
equivalent investment grade credit rating from any replacement rating agency
or
rating agencies selected by the Company.
“Moody’s”
means
Xxxxx’x Investors Service, Inc.
“Principal
Amount at Maturity”
of
the
Notes means the principal amount at maturity as set forth on the face of each
respective Note.
“Quotation
Agent”
means
the Reference Treasury Dealer appointed by the Company.
“Rating
Agencies”
means
(a) each of Fitch, Moody’s and S&P; and (b) if any of Fitch, Moody’s or
S&P ceases to rate the Notes or fails to make a rating of the Notes publicly
available for reasons outside of the control of the Company, a “nationally
recognized statistical rating organization” (within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Securities Exchange Act of 1934) selected by
the
Company as a replacement rating agency for a former rating agency.
“Rating
Event”
means
the rating on the Notes is lowered by each of the Rating Agencies and the Notes
are rated below an Investment Grate Rating by each of the Rating Agencies on
any
day within the 60-day period (which 60-day period shall be extended so long
as
the rating of the Notes is under publicly announced consideration for a possible
downgrade by any of the Rating Agencies) after the earlier of (a) the occurrence
of a Change of Control and (b) public notice of the particular Change of Control
or the Company’s intention to effect a Change of Control; provided that a Rating
Event will not be deemed to have occurred in respect of a particular Change
of
Control (and thus shall not be deemed a Rating Event for purposes of the
definition of Change of Control Triggering Event) if each Rating Agency making
the reduction in rating does not publicly announce or confirm or inform the
Trustee in writing at the request of the Company that the reduction was the
result, in whole or in part, of any event or circumstance comprised of or
arising as a result of, or in respect of, the Change of Control (whether or
not
the applicable Change of Control has occurred at the time of the Rating
Event).
“Reference
Treasury Dealer”
means
(i) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and X.X. Xxxxxx
Securities Inc. (or their respective affiliates that are Primary Treasury
Dealers) and their respective successors; provided, however, that if any of
the
foregoing shall cease to be a primary U.S. Government securities dealer in
New
York City (a “Primary
Treasury Dealer”),
we
will substitute therefor another Primary Treasury Dealer, and (ii) any other
Primary Treasury Dealer selected by us.
“Reference
Treasury Dealer Quotations”
means,
with respect to such Reference Treasury Dealer and any redemption date, the
average of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted in writing to
the
Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time,
on
the third Business Day preceding such redemption date.
4
“Regular
Record Date”
has
the
meaning set forth in Section 204(a) of this Fifth Supplemental
Indenture.
“S&P”
means
Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc.
“Stated
Maturity”
has
the
meaning set forth in Section 203 of this Fifth Supplemental
Indenture.
“Treasury
Rate”
means,
with respect to any redemption date, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price of such redemption
date.
“Underwriting
Agreement”
means
the Underwriting Agreement, dated September 11, 2007, among the Company and
X.X.
Xxxxxx Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
and Wachovia Capital Markets.
“Voting
Stock”
means,
with respect to any specified person (as that term is used in Section 13(d)(3)
of the Securities Exchange Act of 1934) as of any date, the capital stock of
such person that is at the time entitled to vote generally in the election
of
the board of directors of such person.
Section
102. Section
References Each
reference to a particular section set forth in this Fifth Supplemental Indenture
shall, unless the context otherwise requires, refer to this Fifth Supplemental
Indenture. Each reference to a particular section of the Base Indenture shall
refer to that particular section of the Base Indenture.
ARTICLE
II
THE
NOTES
Section
201. Title
of the Notes The
Company hereby creates the 2012 Notes, the 2017 Notes and the 2037 Notes, each
as a separate series of its Securities issued pursuant to the Indenture. The
2012 Notes shall be designated as the “5.60% Notes due 2012,” the 2017 Notes
shall be designated as the “6.10% Notes due 2017” and the 2037 Notes shall be
designated as the “6.65% Notes due 2037.”
Section
202. Amount
The
aggregate Principal Amount at Maturity of the 2012 Notes that may be
authenticated and delivered under this Fifth Supplemental Indenture is limited
to $550,000,000, the aggregate Principal Amount at Maturity of the 2017 Notes
that may be authenticated and delivered under this Fifth Supplemental Indenture
is limited to $250,000,000 and the aggregate Principal Amount at Maturity of
the
2037 Notes that may be authenticated and delivered under this Fifth Supplemental
Indenture is limited to $500,000,000.
5
Section
203. Stated
Maturity The
Stated Maturity of the 2012 Notes shall be September 15, 2012, the Stated
Maturity of the 2017 Notes shall be September 15, 2017, and the Stated Maturity
of the 2037 Notes shall be September 15, 2037.
Section
204. Interest
and Payment The
2012
Notes shall bear interest at 5.60% per annum, the 2017 Notes shall bear interest
at 6.10% per annum, and the 2037 Notes shall bear interest at 6.65% per annum
beginning on the date of issuance until the Notes, respectively, are redeemed,
paid or duly provided for. Interest shall be paid semi-annually in arrears
on
each March 15 and September 15 (each, an “Interest
Payment Date”),
commencing on March 15, 2008, to persons in whose names the Notes are registered
at the close of the Business Day on the March 1 immediately preceding each
March
15 or the September 1 immediately preceding each September 15 (each a
“Regular
Record Date”).
(b) Payments
of interest on the Notes shall include interest accrued to but excluding the
respective Interest Payment Dates. Interest payments for the Notes shall be
computed on the basis of a 360-day year composed of twelve 30-day months.
Payments of principal and interest to owners of book-entry interests shall
be
made to holders of the Notes on the respective Regular Record Date in accordance
with the procedures of DTC and its participants in effect from time to time.
Settlement for the Notes shall be made in immediately available funds. All
payments of principal and interest shall be made by the Company in immediately
available funds except as set forth in the applicable Note.
Section
205. Optional
Redemption The
2012
Notes, the 2017 Notes and/or the 2037 Notes, as the case may be, will be
redeemable, in whole at any time or in part from time to time, at the Company’s
option at a redemption price equal to the greater of:
(i) 100%
of
the principal amount of the 2012 Notes, the 2017 Notes and/or the 2037 Notes
to
be redeemed; or
(ii) the
sum
of the present values of the remaining scheduled payments of principal and
interest thereon (not including any portion of such payments of interest accrued
as of the date of redemption), discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate, plus 20 basis points with respect to the 2012 Notes,
25
basis points with respect to the 2017 Notes, and 30 basis points with respect
to
the 2037 Notes,
plus,
in
each case, accrued interest thereon to but excluding the date of redemption.
Notwithstanding the foregoing, installments of interest on Notes that are due
and payable on Interest Payment Dates falling on or prior to a redemption date
will be payable on the Interest Payment Date to the registered holders as of
the
close of the Business Day on the relevant record date.
(b) Notice
of
any redemption will be mailed at least 30 days but not more than 60 days before
the Redemption Date set forth in such notice to each registered holder of the
2012 Notes, the 2017 Notes and/or the 2037 Notes, as the case may be, to be
redeemed. Unless the Company defaults in payment of the redemption price, on
and
after the applicable Redemption Date, interest will cease to accrue on the
Notes
or portions thereof called for redemption. If less than
6
all
of
the Notes are to be redeemed, the Notes to be redeemed shall be selected by
the
Trustee by a method the Trustee deems to be fair and appropriate.
Section
206. Change
of Control Offer to Purchase
(a)
If a
Change of Control Triggering Event occurs, holders of Notes may require the
Company to repurchase all of any part (equal to $1,000 or an integral multiple
of $1,000 in excess thereof) of their Notes at a purchase price of 101% of
the
principal amount, plus accrued and unpaid interest, if any, on such Notes to
the
date of purchase (unless a notice of redemption has been mailed within 30 days
after such Change of Control Triggering Event stating that all of the Notes
will
be redeemed as described in this Section 206). The Company shall be required
to
mail to holders of the Notes a notice describing the transaction or transactions
constituting the Change of Control Triggering Event and offering to repurchase
the Notes. The notice must be mailed within 30 days after any Change of Control
Triggering Event, and the repurchase must occur no earlier than 30 days and
no
later than 60 days after the date the notice is mailed.
(b) On
the
date specified for repurchase of the Notes, the Company shall, to the extent
lawful:
(i)
accept
for payment all properly tendered Notes or portions of Notes;
(ii)
deposit
with the paying agent the required payment for all properly tendered Notes
or
portions of Notes; and
(iii)
deliver
to the Trustee the repurchased Notes, accompanied by an Officers’ Certificate
stating, among other things, the aggregate principal amount of repurchased
Notes.
(c)
The
Company shall comply with the requirements of Rule 14e-1 under the Securities
Exchange Act of 1934 and any other securities laws and regulations applicable
to
the repurchase of the Notes. To the extent that these requirements conflict
with
the provisions requiring repurchases of the Notes, the Company shall comply
with
such requirements instead of the repurchase provisions and shall not be
considered to have breached its obligations with respect to repurchasing the
Notes. Additionally, if an Event of Default exists under the Indenture (which
is
unrelated to the repurchase provisions of the Notes), including the events
of
default arising with respect to other issues of debt securities, the Company
shall not be required to repurchase the Notes notwithstanding these repurchase
provisions.
(d)
The
Company shall not be required to comply with the obligations of this Section
206
if a third party instead satisfies them.
Section
207. Forms;
Denominations The
Notes
shall be Registered Securities and shall be issued in denominations of $1,000
or
any integral multiple thereof. The certificates for the Notes shall be in
substantially the forms attached hereto as Exhibit X-0, Xxxxxxx X-0 and Exhibit
A-3.
(a) Global
Notes.
(i)
Notes
shall be issued initially in the form of one or more Global Notes in definitive
fully registered form without interest coupons, deposited on behalf of the
7
subscribers
for the Notes represented thereby with The Bank of New York Trust Company,
N.A.,
at its Corporate Trust Office, as custodian for the Depositary and registered
in
the name of DTC or a nominee thereof, duly executed by the Company and
authenticated by the Trustee as provided in the Indenture. The aggregate
Principal Amount at Maturity of the Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee and
the
Depositary as hereinafter provided.
(ii) Book-Entry
Provisions. The Company shall execute and the Trustee shall, in accordance
with
this Section 207(a)(ii) and Section 303 of the Base Indenture, authenticate
and
deliver initially one or more Global Notes that (a) shall be registered in
the
name of the Depositary, (b) shall be delivered by the Trustee to the Depositary
or pursuant to the Depositary’s instructions and (c) shall bear legends
substantially to the following effect:
“UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (“DTC”) 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 TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS 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.”
Section
208. Applicability
of Reports by Company For
purposes of this Fifth Supplemental Indenture, to the extent information,
documents or reports are required to be filed with the Commission and delivered
to the Trustee or the Holders, the availability of such information, documents
or reports on the Commission’s Electronic Data Gathering Analysis and Retrieval
(“XXXXX”)
system
or the Company’s website shall be deemed to have satisfied such delivery
requirements to the Trustee or the Holders, as applicable.
Section
209. Applicability
of Sinking Funds The
provisions of Article Twelve of the Base Indenture shall not apply to the 2012
Notes, the 2017 Notes or the 2037 Notes.
Section
210. Applicability
of Repayment of Securities at Option of Holders
The
provisions of Article Thirteen of the Base Indenture shall not apply to the
2012
Notes, the 2017 Notes or the 2037 Notes.
Section
211. Applicability
of Conversion of Securities The
provisions of Article Fourteen of the Base Indenture shall not apply to the
2012
Notes, the 2017 Notes or the 2037
8
Notes.
ARTICLE
III
MISCELLANEOUS
PROVISIONS
Section
301. Concerning
the Indenture Except
as
expressly amended hereby, the Base Indenture shall continue in full force and
effect in accordance with the provisions thereof and the Base Indenture is
in
all respects hereby ratified and confirmed. This Fifth Supplemental Indenture
and all its provisions shall be deemed a part of the Base Indenture in the
manner and to the extent herein and therein provided.
Section
302. Severability
If
any
provision in this Fifth 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
303. Trust
Indenture Act If
any
provision in this Fifth Supplemental Indenture limits, qualifies or conflicts
with any other provision hereof or of the Base Indenture which provision is
required to be included in the Base Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
Section
304. Trustee
The
recitals and statements herein are deemed to be those of the Company and not
of
the Trustee. The Trustee makes no representations as to the validity or
sufficiency of this Fifth Supplemental Indenture.
Section
305. Governing
Law This
Fifth Supplemental Indenture shall be governed by, and construed in accordance
with, the laws of the State of New York.
Section
306. Multiple
Originals
This Fifth Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
9
IN
WITNESS WHEREOF, the parties have caused this Fifth Supplemental Indenture
to be
duly executed.
XXXX’X
COMPANIES, INC.
By:
/s/ Xxxxxx X. Xxxx ,
Xx.
Name:
Xxxxxx Xxxx
Title:
CFO
THE
BANK
OF NEW YORK TRUST COMPANY, N.A., as Trustee
By: /s/
Xxxx X.
Xxxxxxxx
Name:
Xxxx X. Xxxxxxxx
Title:
Assistant Vice President
EXHIBIT
A-1
FORM
OF
GLOBAL NOTE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO XXXX’X 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, INASMUCH AS
THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
XXXX’X
COMPANIES, INC.
5.60%
Notes due September 15, 2012
GLOBAL
SECURITY
Xx.
0 XXXXX
Xx. 000000 CM7
$550,000,000
Original
Principal Amount
Xxxx’x
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 its registered assigns,
the principal sum of $550,000,000 on September 15, 2012, 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
September 11, 2007, 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 March 15, 2008, at the rate of
5.60% 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 installments of interest
until paid.
The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date, as provided in the Amended and Restated Indenture, dated as of
December 1, 1995 (the “Base Indenture”) between the Company and The Bank of New
York Trust Company, N.A., as trustee (the “Trustee”), as supplemented by the
Fifth Supplemental Indenture dated as of September 11, 2007, between the Company
and the Trustee (the “Fifth Supplemental Indenture”
A-1-1
and,
together with the Base Indenture, the “Indenture”) shall be paid to the Person
in whose name this Note is registered at the close of business on the respective
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 Note
is
registered on such Regular Record Date and may either be paid to the Person
in
whose name this Note is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed in accordance with
Section 307 of the Base Indenture by the Trustee, notice whereof shall be given
to the Person in whose name this Note 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
Note
is a “book-entry” note 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 Indenture, this Note 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.
As
long
as this Note is registered in the name of DTC or its nominee, the Trustee will
make payments of principal of and interest on this Note by wire transfer of
immediately available funds to DTC or its nominee. Notwithstanding the above,
the final payment on this Note will be made after due notice by the Trustee
of
the pendency of such payment and only upon presentation and surrender of this
Note at its principal corporate trust office or such other office 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 Note 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
Note
is one of a duly authorized series of notes of the Company, designated 5.60%
Notes due 2012 (the “Notes”), limited in aggregate principal amount at any time
outstanding to FIVE HUNDRED FIFTY MILLION DOLLARS ($550,000,000) which may
be
issued under the Indenture. Reference is hereby made to the Indenture and all
indentures supplemental thereto which are applicable to the Notes 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
Notes, and the terms upon which the Notes are, and are to be, authenticated
and
delivered. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The
Notes
do not have the benefit of any sinking fund obligations.
The
Notes
will be redeemable, in whole at any time or in part from time to time, at the
Company’s option at a redemption price equal to the greater of:
A-1-2
(i) 100%
of
the principal amount of the Notes to be redeemed; or
(ii) the
sum
of the present values of the remaining scheduled payments of principal and
interest thereon (not including any portion of such payments of interest accrued
as of the date of redemption), discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate, plus 20 basis points,
plus,
in
each case, accrued interest thereon to but excluding the date of redemption.
Notwithstanding the foregoing, installments of interest on Notes that are due
and payable on Interest Payment Dates falling on or prior to a redemption date
will be payable on the Interest Payment Date to the registered holders as of
the
close of the Business Day on the relevant record date.
Notice
of
any redemption will be mailed at least 30 days but not more than 60 days before
the Redemption Date to each registered holder of the Notes to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after
the
Redemption Date, interest will cease to accrue on the Notes or portions thereof
called for redemption. If less than all of the Notes are to be redeemed, the
Notes to be redeemed shall be selected by the Trustee by a method the Trustee
deems to be fair and appropriate.
Upon
a
Change of Control Triggering Event, the Company shall be required to make an
offer to repurchase the Notes on the terms set forth in the
Indenture.
If
an
Event of Default shall occur and be continuing, the principal of all 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 at any time of (a) the entire
indebtedness of the Company under this Note 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 Note.
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 Notes under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Notes at the time Outstanding. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Notes at the time Outstanding, on behalf
of
the Holders of all Notes, 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 Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note 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 Note.
No
reference herein to the Indenture and provisions of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of (and premium, if any) and interest
on
this Note at the times, place and rate, and in the coin or currency, as herein
prescribed.
A-1-3
As
provided in the Indenture and subject to certain limitations on transfer of
this
Note by DTC or its nominee, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note 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 a written instrument of transfer
in
the form attached hereto duly executed by the Holder hereof or his attorney
duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, shall be issued
to
the designated transferee or transferees.
The
Notes
are issuable only in registered form in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes 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 Notes, 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 Person in
whose name this Note is registered as the owner hereof for all purposes, whether
or not this Note be overdue, and none of the Company, the Trustee or any such
agent shall be affected by notice to the contrary.
Interest
on this Note 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 Notes, upon written request
and
without charge, a copy of the Indenture.
The
Indenture and this Note 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.
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.
A-1-4
IN
WITNESS WHEREOF, XXXX'X COMPANIES, INC.
has
caused this Note to be signed by a duly elected or appointed, qualified and
serving officer and attested by a duly elected or appointed, qualified and
serving officer.
XXXX'X
COMPANIES, INC.
By ________________________________
Name:
Title:
Dated:
September 11, 2007
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
BANK
OF NEW YORK TRUST COMPANY, N.A.
as
Trustee
By:
__________________________________
Authorized
Officer
A-1-5
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this Note,
shall be construed as though they were written out in full according to
applicable laws or regulations:
TEN
COM -
tenants in common
TEN
ENT -
tenants by the entireties
JT
TEN -
joint tenants with right of survivorship and not as tenants in
common
CUST
-
Custodian
U/G/M/A
or UNIF GIFT MIN ACT - Uniform Gifts to Minors Act
Additional
abbreviations may also be used though not in the above list.
A-1-6
FORM
OF
TRANSFER
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________
(Please
print or typewrite name and address of assignee)
____________________________________________________________________________________________________________________________________________
(Please
insert Social Security or other identifying Number of Assignee)
the
within Note of Xxxx’x Companies, Inc. and does hereby irrevocably constitute and
appoint ________________________________________________________ ,
Attorney, to transfer the said Note on the books of the within named Xxxx’x
Companies, Inc., with full power of substitution in the premises.
Dated:
____________________________
NOTICE:
The signature to this assignment must correspond with the name as
written
upon the face of this Note in every particular without alteration
or
enlargement or any change whatever.
|
SIGNATURE
GUARANTEED:
The
signature must be guaranteed by a member of the Securities Transfer
Agents
Medallion Program. Notarized or witnessed signatures are nor
acceptable.
|
A-1-7
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 required to be physically delivered under
the
terms of the Indenture should be mailed to .
This
information is provided by ,
the
assignee named above, or ,
as its
agent.
X-0-0
XXXXXXX
X-0
FORM
OF
GLOBAL NOTE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO XXXX’X 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, INASMUCH AS
THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
XXXX’X
COMPANIES, INC.
6.10%
Notes due September 15, 2017
GLOBAL
SECURITY
Xx.
0 XXXXX
Xx. 000000 CN5
$250,000,000
Original
Principal Amount
Xxxx’x
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 its registered assigns,
the principal sum of $250,000,000 on September 15, 2017, 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
September 11, 2007, 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 March 15, 2008, at the rate of
6.10% 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 installments of interest
until paid.
The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date, as provided in the Amended and Restated Indenture, dated as of
December 1, 1995 (the “Base Indenture”) between the Company and The Bank of New
York Trust Company,
A-2-1
N.A.,
as
trustee (the “Trustee”), as supplemented by the Fifth Supplemental Indenture
dated as of September 11, 2007, between the Company and the Trustee (the “Fifth
Supplemental Indenture” and, together with the Base Indenture, the “Indenture”)
shall be paid to the Person in whose name this Note is registered at the close
of business on the respective 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 Note is registered on such Regular Record Date and
may
either be paid to the Person in whose name this Note is registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest
to be fixed in accordance with Section 307 of the Base Indenture by the Trustee,
notice whereof shall be given to the Person in whose name this Note 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
Note
is a “book-entry” note 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 Indenture, this Note 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.
As
long
as this Note is registered in the name of DTC or its nominee, the Trustee will
make payments of principal of and interest on this Note by wire transfer of
immediately available funds to DTC or its nominee. Notwithstanding the above,
the final payment on this Note will be made after due notice by the Trustee
of
the pendency of such payment and only upon presentation and surrender of this
Note at its principal corporate trust office or such other office 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 Note 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
Note
is one of a duly authorized series of notes of the Company, designated 6.10%
Notes due 2017 (the “Notes”), limited in aggregate principal amount at any time
outstanding to TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000) which may be
issued under the Indenture. Reference is hereby made to the Indenture and all
indentures supplemental thereto which are applicable to the Notes 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
Notes, and the terms upon which the Notes are, and are to be, authenticated
and
delivered. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The
Notes
do not have the benefit of any sinking fund obligations.
A-2-2
The
Notes
will be redeemable, in whole at any time or in part from time to time, at the
Company’s option at a redemption price equal to the greater of:
(i) 100%
of
the principal amount of the Notes to be redeemed; or
(ii) the
sum
of the present values of the remaining scheduled payments of principal and
interest thereon (not including any portion of such payments of interest accrued
as of the date of redemption), discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate, plus 25 basis points,
plus,
in
each case, accrued interest thereon to but excluding the date of redemption.
Notwithstanding the foregoing, installments of interest on Notes that are due
and payable on Interest Payment Dates falling on or prior to a redemption date
will be payable on the Interest Payment Date to the registered holders as of
the
close of the Business Day on the relevant record date.
Notice
of
any redemption will be mailed at least 30 days but not more than 60 days before
the Redemption Date to each registered holder of the Notes to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after
the
Redemption Date, interest will cease to accrue on the Notes or portions thereof
called for redemption. If less than all of the Notes are to be redeemed, the
Notes to be redeemed shall be selected by the Trustee by a method the Trustee
deems to be fair and appropriate.
Upon
a
Change of Control Triggering Event, the Company shall be required to make an
offer to repurchase the Notes on the terms set forth in the
Indenture.
If
an
Event of Default shall occur and be continuing, the principal of all 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 at any time of (a) the entire
indebtedness of the Company under this Note 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 Note.
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 Notes under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Notes at the time Outstanding. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Notes at the time Outstanding, on behalf
of
the Holders of all Notes, 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 Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note 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 Note.
A-2-3
No
reference herein to the Indenture and provisions of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of (and premium, if any) and interest
on
this Note at the times, place and rate, and in the coin or currency, as herein
prescribed.
As
provided in the Indenture and subject to certain limitations on transfer of
this
Note by DTC or its nominee, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note 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 a written instrument of transfer
in
the form attached hereto duly executed by the Holder hereof or his attorney
duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, shall be issued
to
the designated transferee or transferees.
The
Notes
are issuable only in registered form in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes 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 Notes, 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 Person in
whose name this Note is registered as the owner hereof for all purposes, whether
or not this Note be overdue, and none of the Company, the Trustee or any such
agent shall be affected by notice to the contrary.
Interest
on this Note 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 Notes, upon written request
and
without charge, a copy of the Indenture.
The
Indenture and this Note 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.
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.
A-2-4
IN
WITNESS WHEREOF, XXXX'X COMPANIES, INC.
has
caused this Note to be signed by a duly elected or appointed, qualified and
serving officer and attested by a duly elected or appointed, qualified and
serving officer.
XXXX'X
COMPANIES, INC.
By ________________________________
Name:
Title:
Dated:
September 11, 2007
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
BANK
OF NEW YORK TRUST COMPANY, N.A.
as
Trustee
By:
__________________________________
Authorized
Officer
A-2-5
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this Note,
shall be construed as though they were written out in full according to
applicable laws or regulations:
TEN
COM -
tenants in common
TEN
ENT -
tenants by the entireties
JT
TEN -
joint tenants with right of survivorship and not as tenants in
common
CUST
-
Custodian
U/G/M/A
or UNIF GIFT MIN ACT - Uniform Gifts to Minors Act
Additional
abbreviations may also be used though not in the above list.
A-2-6
FORM
OF
TRANSFER
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
____________________________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name and address of assignee)
____________________________________________________________________________________________________________________________________________
(Please
insert Social Security or other identifying Number of Assignee)
the
within Note of Xxxx’x Companies, Inc. and does hereby irrevocably constitute and
appoint ________________________________________________________ ,
Attorney, to transfer the said Note on the books of the within named Xxxx’x
Companies, Inc., with full power of substitution in the premises.
Dated:
____________________________
NOTICE:
The signature to this assignment must correspond with the name
as written
upon the face of this Note in every particular without alteration
or
enlargement or any change whatever.
|
SIGNATURE
GUARANTEED:
The
signature must be guaranteed by a member of the Securities Transfer
Agents
Medallion Program. Notarized or witnessed signatures are nor
acceptable.
|
A-2-7
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 required to be physically delivered under
the
terms of the Indenture should be mailed to .
This
information is provided by ,
the
assignee named above, or ,
as its
agent.
X-0-0
XXXXXXX
X-0
FORM
OF
GLOBAL NOTE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO XXXX’X 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, INASMUCH AS
THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
XXXX’X
COMPANIES, INC.
6.65%
Notes due September 15, 2037
GLOBAL
SECURITY
Xx.
0 XXXXX
Xx. 000000 CP0
$500,000,000
Original
Principal Amount
Xxxx’x
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 its registered assigns,
the principal sum of $500,000,000 on September 15, 2037, 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
September 11, 2007, 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 March 15, 2008, at the rate of
6.65% 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 installments of interest
until paid.
The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date, as provided in the Amended and Restated Indenture, dated as of
December 1, 1995 (the “Base Indenture”) between the Company and The Bank of New
York Trust Company, N.A., as trustee (the “Trustee”), as supplemented by the
Fifth Supplemental Indenture dated as of
A-3-1
September
11, 2007, between the Company and the Trustee (the “Fifth Supplemental
Indenture” and, together with the Base Indenture, the “Indenture”) shall be paid
to the Person in whose name this Note is registered at the close of business
on
the respective 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 Note is registered on such Regular Record Date and may either be
paid
to the Person in whose name this Note is registered at the close of business
on
a Special Record Date for the payment of such Defaulted Interest to be fixed
in
accordance with Section 307 of the Base Indenture by the Trustee, notice whereof
shall be given to the Person in whose name this Note 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
Note
is a “book-entry” note 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 Indenture, this Note 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.
As
long
as this Note is registered in the name of DTC or its nominee, the Trustee will
make payments of principal of and interest on this Note by wire transfer of
immediately available funds to DTC or its nominee. Notwithstanding the above,
the final payment on this Note will be made after due notice by the Trustee
of
the pendency of such payment and only upon presentation and surrender of this
Note at its principal corporate trust office or such other office 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 Note 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
Note
is one of a duly authorized series of notes of the Company, designated 6.65%
Notes due 2037 (the “Notes”), limited in aggregate principal amount at any time
outstanding to FIVE HUNDRED MILLION DOLLARS ($500,000,000) which may be issued
under the Indenture. Reference is hereby made to the Indenture and all
indentures supplemental thereto which are applicable to the Notes 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
Notes, and the terms upon which the Notes are, and are to be, authenticated
and
delivered. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The
Notes
do not have the benefit of any sinking fund obligations.
A-3-2
The
Notes
will be redeemable, in whole at any time or in part from time to time, at the
Company’s option at a redemption price equal to the greater of:
(i) 100%
of
the principal amount of the Notes to be redeemed; or
(ii) the
sum
of the present values of the remaining scheduled payments of principal and
interest thereon (not including any portion of such payments of interest accrued
as of the date of redemption), discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate, plus 30 basis points,
plus,
in
each case, accrued interest thereon to but excluding the date of redemption.
Notwithstanding the foregoing, installments of interest on Notes that are due
and payable on Interest Payment Dates falling on or prior to a redemption date
will be payable on the Interest Payment Date to the registered holders as of
the
close of the Business Day on the relevant record date.
Notice
of
any redemption will be mailed at least 30 days but not more than 60 days before
the Redemption Date to each registered holder of the Notes to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after
the
Redemption Date, interest will cease to accrue on the Notes or portions thereof
called for redemption. If less than all of the Notes are to be redeemed, the
Notes to be redeemed shall be selected by the Trustee by a method the Trustee
deems to be fair and appropriate.
Upon
a
Change of Control Triggering Event, the Company shall be required to make an
offer to repurchase the Notes on the terms set forth in the
Indenture.
If
an
Event of Default shall occur and be continuing, the principal of all 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 at any time of (a) the entire
indebtedness of the Company under this Note 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 Note.
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 Notes under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Notes at the time Outstanding. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Notes at the time Outstanding, on behalf
of
the Holders of all Notes, 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 Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note 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 Note.
A-3-3
No
reference herein to the Indenture and provisions of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of (and premium, if any) and interest
on
this Note at the times, place and rate, and in the coin or currency, as herein
prescribed.
As
provided in the Indenture and subject to certain limitations on transfer of
this
Note by DTC or its nominee, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note 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 a written instrument of transfer
in
the form attached hereto duly executed by the Holder hereof or his attorney
duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, shall be issued
to
the designated transferee or transferees.
The
Notes
are issuable only in registered form in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes 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 Notes, 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 Person in
whose name this Note is registered as the owner hereof for all purposes, whether
or not this Note be overdue, and none of the Company, the Trustee or any such
agent shall be affected by notice to the contrary.
Interest
on this Note 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 Notes, upon written request
and
without charge, a copy of the Indenture.
The
Indenture and this Note 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.
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.
A-3-4
IN
WITNESS WHEREOF, XXXX'X COMPANIES, INC.
has
caused this Note to be signed by a duly elected or appointed, qualified
and
serving officer and attested by a duly elected or appointed, qualified
and
serving officer.
XXXX'X
COMPANIES, INC.
By ________________________________
Name:
Title:
Dated:
September 11, 2007
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
BANK
OF NEW YORK TRUST COMPANY, N.A.
as
Trustee
By:
__________________________________
Authorized
Officer
A-3-5
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this Note,
shall be construed as though they were written out in full according to
applicable laws or regulations:
TEN
COM -
tenants in common
TEN
ENT -
tenants by the entireties
JT
TEN -
joint tenants with right of survivorship and not as tenants in
common
CUST
-
Custodian
U/G/M/A
or UNIF GIFT MIN ACT - Uniform Gifts to Minors Act
Additional
abbreviations may also be used though not in the above list.
A-3-6
FORM
OF
TRANSFER
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
____________________________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name and address of assignee)
____________________________________________________________________________________________________________________________________________
(Please
insert Social Security or other identifying Number of Assignee)
the
within Note of Xxxx’x Companies, Inc. and does hereby irrevocably constitute and
appoint ________________________________________________________ ,
Attorney, to transfer the said Note on the books of the within named Xxxx’x
Companies, Inc., with full power of substitution in the premises.
Dated:
____________________________
NOTICE:
The signature to this assignment must correspond with the name
as written
upon the face of this Note in every particular without alteration
or
enlargement or any change whatever.
|
SIGNATURE
GUARANTEED:
The
signature must be guaranteed by a member of the Securities Transfer
Agents
Medallion Program. Notarized or witnessed signatures are nor
acceptable.
|
A-3-7
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 required to be physically delivered under
the
terms of the Indenture should be mailed to .
This
information is provided by ,
the
assignee named above, or ,
as its
agent.
A-3-8