THIRD SUPPLEMENTAL INDENTURE Dated as of October 6, 2005 between LOWE’S COMPANIES, INC. and THE BANK OF NEW YORK as Trustee Supplemental to the Amended and Restated Indenture Dated as of December 1, 1995 Creating a Series of Securities designated
Exhibit
4.5
__________________________________________
THIRD
SUPPLEMENTAL INDENTURE
Dated
as
of October 6, 2005
___________________________________________
between
XXXX’X
COMPANIES, INC.
and
THE
BANK OF
NEW YORK
as
Trustee
___________________________________________
Supplemental
to the Amended and Restated Indenture
Dated
as
of December 1, 1995
___________________________________________
Creating
a Series of Securities designated
5.0%
Notes due 2015
and
Creating
a Series of Securities designated
5.5%
Notes due 2035
THIRD
SUPPLEMENTAL INDENTURE, dated as of October 6, 2005 (this “Third
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 a
banking corporation 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 Third 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 Third Supplemental Indenture
in
order to establish the form and terms
of,
and
to provide for the creation and issuance of, two new series of Securities
designated as its (i) 5.0% Notes due October 15, 2015 (the “2015
Notes”),
in an
aggregate Principal Amount at Maturity of up to $500,000,000 and (ii) 5.5%
Notes
due October 15, 2035 (the “2035
Notes”
and,
together with the 2015 Notes, the “Notes”)
in an
aggregate Principal Amount at Maturity of up to $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 Third Supplemental Indenture
a
valid supplement to the Indenture.
NOW,
THEREFORE, in order to establish the form and terms of the series of the
2015
Notes and the series of the 2035 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 Third 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 Third Supplemental Indenture have the meanings assigned to them in this
Article. Each capitalized term that is used in this Third 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.
“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 Deale Quotations, the average of
all
such quotations, or (iii) if only one Reference Treasury Dealer Quotation
is
received, such quotation.
“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
2
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.
“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 A-1 or Exhibit
A-2.
“Interest
Payment Date”
has
the
meaning set forth in Section 204(a) of this Third Supplemental
Indenture.
“Principal
Amount at Maturity”
of
the
Notes means the principal amount at maturity as set forth on the face of
each
respective Note.
“Purchase
Agreement”
means
the Purchase Agreement, dated October 3, 2005, between the Company and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Wachovia Capital Markets, LLC
and Banc of America Securities LLC.
“Quotation
Agent”
means
the Reference Treasury Dealer appointed by us.
“Reference
Treasury Dealer”
means
(i) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Banc of America
Securities LLC (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, as determined by the Trustee, 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.
“Regular
Record Date”
has
the
meaning set forth in Section 204(a) of this Third Supplemental
Indenture.
“Stated
Maturity”
has
the
meaning set forth in Section 203 of this Third 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.
Section
102. Section
References.
Each reference to a particular section set forth in this Third
Supplemental Indenture shall, unless the context otherwise requires, refer
to
this Third
3
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 2015 Notes and the 2035 Notes, each as a separate
series of its Securities issued pursuant to the Indenture. The 2015 Notes
shall
be designated as the “5.0% Notes due 2015,” and the 2035 Notes shall be
designated as the “5.5% Notes due 2035.”
Section
202. Amount.
The aggregate Principal Amount at Maturity of the 2015 Notes that may be
authenticated and delivered under this Third Supplemental Indenture is limited
to $500,000,000, and the aggregate Principal Amount at Maturity of the 2035
Notes that may be authenticated and delivered under this Third Supplemental
Indenture is limited to $500,000,000.
Section
203. Stated
Maturity.
The Stated Maturity of the 2015 Notes shall be October 15, 2015, and the
Stated
Maturity of the 2035 Notes shall be October 15, 2035.
Section
204. Interest
and Payment.
(a) The
2015
Notes shall bear interest at 5.0% per annum, and the 2035 Notes shall bear
interest at 5.5% 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 April 15 and October 15 (each, an “Interest
Payment Date”),
commencing on April 15, 2006, to persons in whose names the Notes are registered
at the close of the Business Day on the April 1 immediately preceding each
April
15 or the October 1 immediately preceding each October 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.
(a) The
2015
Notes and/or the 2035 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 2015 Notes and/or the 2035 Notes to be redeemed;
or
4
(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 15 basis points with respect to the 2015 Notes,
and
20 basis points with respect to the 2035 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
2015 Notes and/or the 2035 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 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. 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
A-1 and
Exhibit A-2.
(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
subscribers for the Notes represented thereby with The Bank of New York,
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 206(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
5
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
207. Applicability
of Reports by Company.
For purposes of this Third 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
208. Applicability
of Sinking Funds.
The provisions of Article Twelve of the Base Indenture shall not apply
to the
2015 Notes or the 2035 Notes.
Section
209. Applicability
of Repayment of Securities at Option of Holders.
The provisions of Article Thirteen of the Base Indenture shall not apply
to the
2015 Notes or the 2035 Notes.
Section
210. Applicability
of Conversion of Securities.
The provisions of Article Fourteen of the Base Indenture shall not apply
to the
2015 Notes or the 2035 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 Third
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 Third 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 Third 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.
6
Section
305. Governing
Law.
This Third Supplemental Indenture shall be governed by, and construed
in
accordance with, the laws of the State of New York.
Section
306. Multiple
Originals.
This Third 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.
7
IN
WITNESS WHEREOF, the parties have caused this Third Supplemental Indenture
to be
duly executed.
XXXX’X
COMPANIES, INC.
By:
/s/
Xxxxxxxx X. Xxxxx,
Xx.
Name: Xxxxxxxx X. Xxxxx, Xx.
Title: Assistant Treasurer
THE
BANK
OF NEW YORK, as Trustee
By:
/s/
Van X.
Xxxxx
Name: Van X. Xxxxx
Title:
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.
5.0%
Notes due October 15, 2015
GLOBAL
SECURITY
No.
[●] CUSIP
No. 548661 CH 8
$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 October 15, 2015, 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
October 6, 2005, or from the most recent Interest Payment Date on which interest
has been paid or duly provided for, semi-annually in arrears on April 15
and
October 15 in each year, commencing April 15, 2006, at the rate of 5.0% 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, as trustee (the “Trustee”), as supplemented by the Third
Supplemental Indenture dated as of October 6, 2005, between the Company and
the
Trustee (the “Third Supplemental Indenture” and, together with
A-2-1
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 April 1 or October 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
5.0%
Notes due October 15, 2015 (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.
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-2-2
(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 15 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.
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, 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.
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
A-2-3
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:
October 6, 2005
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
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.
5.5%
Notes due October 15, 2035
GLOBAL
SECURITY
No.
[●]
CUSIP
No. 548661 CJ 4
$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 October 15, 2035, 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
October 6, 2005, or from the most recent Interest Payment Date on which interest
has been paid or duly provided for, semi-annually in arrears on April 15
and
October 15 in each year, commencing April 15, 2006, at the rate of 5.5% 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, as
trustee (the “Trustee”), as supplemented by the Third Supplemental Indenture
dated as of October 6, 2005,
A-2-9
between the Company and the Trustee (the “Third 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 April 1 or October 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 5.5%
Notes due October 15, 2035 (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-2-10
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:
(iii) 100%
of
the principal amount of the Notes to be redeemed; or
(iv) 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.
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, 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-2-11
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-2-12
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:
October 6, 2005
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
as
Trustee
By:_____________________________________________
Authorized Officer
A-2-13
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-2-14
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-2-15
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-2-16