XXXXXX & XXXXX CORPORATION
and
THE CHASE MANHATTAN BANK
as Trustee
________________
Medium-Term Notes
Due Nine Months or More from Date of Issue
________________
THIRD SUPPLEMENTAL INDENTURE
Dated as of May 7, 1998
________________
THIRD SUPPLEMENTAL INDENTURE, dated as of May [ ], 1998 (herein called
the "Third Supplemental Indenture"), between XXXXXX & XXXXX CORPORATION, a
corporation duly organized and existing under the laws of the State of Tennessee
(herein called the "Company"), having its principal office at 0000 X&X
Xxxxxxxxx, Xxxxxxx, Xxxxxxxxx 00000 and THE CHASE MANHATTAN BANK, a banking
corporation duly organized and existing under the laws of the State of New York
as trustee under the Indenture referred to below (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the Trustee a
certain indenture, dated as of January 15, 1992, as amended on July 28, 1992 and
February 10, 1998 (herein called the "Indenture"), providing for the issuance
from time to time of the Company's direct unsecured senior debentures, notes or
other evidences of indebtedness (herein called the "Securities") to be issued in
one or more series as in the Indenture provided; and
WHEREAS, the Company desires, and the Trustee has agreed, to enter into
this Third Supplemental Indenture for the purpose of, among other things,
amending Sections 101, 501, 1005, 1006, 1007, 1008, 1009 and 1010 and deleting
in its entirety Section 1011 of the Indenture in order to effect certain
modifications of the Indenture agreed upon between the Company and the Trustee;
and
WHEREAS, Section 901(5) of the Indenture provides, inter alia, that a
supplemental indenture may be entered into by the Company and the Trustee
without the consent of any Holders of Securities to change or eliminate any of
the provisions of the Indenture, PROVIDED that any such change or elimination
shall become effective only as to the Securities of any series created by such
supplemental indenture and Securities of any series subsequently created to
which such change or elimination is made applicable by the subsequent
supplemental indenture creating such series; and
WHEREAS, Section 901(4) of the Indenture provides, inter alia, that a
supplemental indenture may be entered into by the Company and the Trustee
without the consent of any Holders of Securities to add to or change any of the
provisions of the Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in uncertificated or global form; and
WHEREAS, Section 901(7) of the Indenture provides that the Company and the
Trustee may enter into indentures supplemental to the Indenture for the purpose
of establishing the form or terms of the Securities of any series as permitted
in Sections 201 and 301 of the Indenture; and
WHEREAS, the Company desires to create a series of the Securities in an
aggregate principal amount of up to $115,000,000 to be designated the
"Medium-Term Notes Due Nine Months or More from Date of Issue" (the "Medium-Term
Notes"), and all action on the part of the Company necessary to authorize the
issuance of the Medium-Term Notes under the Indenture and this Third
Supplemental Indenture has been duly taken; and
2
WHEREAS, all acts and things necessary to make the Medium-Term Notes, when
executed by the Company and completed, authenticated and delivered by the
Trustee as in the Indenture and this Third Supplemental Indenture provided, the
valid and binding obligations of the Company and to constitute these presents a
valid and binding supplemental indenture and agreement according to its terms,
have been done and performed;
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises, the Company covenants and agrees
with the Trustee, for the equal and proportionate benefit of all holders of the
Medium-Term Notes, as follows:
ARTICLE ONE
Section 1.01. All terms used in this Third Supplemental Indenture which
are not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
Section 1.02. Section 501 of the Indenture is amended by making subsection
(5) thereof inapplicable solely with respect to the Medium-Term Notes.
ARTICLE TWO
Section 2.01. A series of Securities which shall be designated the
"Medium-Term Notes Due Nine Months or More from Date of Issue" shall be
executed, authenticated and delivered in accordance with the provisions of, and
shall in all respects be subject to, the terms, conditions and covenants of the
Indenture and this Third Supplemental Indenture (including the form of
Medium-Term Note set forth as Exhibit A hereto). The aggregate principal amount
of Medium-Term Notes of the series created hereby which may be authenticated and
delivered under the Indenture shall not, except as permitted by the provisions
of the Indenture, exceed $115,000,000, less an amount equal to the aggregate
price to the public from the sale after the date hereof of any Securities other
than the Medium-Term Notes registered under the Company's Registration Statement
on Form S-3 (File No. 33-44153) (including any other series of Medium-Term
Notes).
Section 2.02. The form of the Medium-Term Notes shall be substantially in
the form of Exhibit A attached hereto. The terms of such Medium-Term Notes are
herein incorporated by reference and are part of this Third Supplemental
Indenture. The Medium-Term Notes shall be registered in such names, shall be in
such amounts and shall have such other specific terms contemplated in the form
of Medium-Term Note attached hereto as Exhibit A, as shall be communicated by
the Company to the Trustee in accordance with the administrative procedures, as
in effect from time to time, established to provide for the issuance of the
Medium-Term Notes.
Section 2.03. The Depository for any Medium-Term Notes issued as Global
Securities shall be The Depository Trust Company in the City of New York ("DTC")
or any successor Depository appointed by the Company within 90 days of the
termination of the services of DTC (or any successor to DTC).
3
ARTICLE THREE
Section 3.01. The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Third Supplemental Indenture or the proper authorization or
the due execution hereof by the Company.
Section 3.02. Except as expressly supplemented and amended hereby, the
Indenture shall continue in full force and effect in accordance with the
provisions thereof, and the Indenture, as supplemented and amended hereby, is in
all respects hereby ratified and confirmed. This Third Supplemental Indenture
and all its provisions shall be deemed a part of the Indenture in the manner and
to the extent herein and therein provided.
Section 3.03. This Third Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
Section 3.04. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to as an original, but
all such counterparts shall together constitute but one and the same instrument.
4
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
XXXXXX & XXXXX CORPORATION
[Seal] By: /s/ XXXX X. XXXXX
-------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President-Finance
and Treasurer
Attest:
/s/ XXXXXXXX X. TURNBON
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
[Seal] By: /s/ XXXXXX XXXXXX
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Second Vice President
Attest:
/s/ XXXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxx
5
STATE OF TENNESSEE )
) ss.:
COUNTY OF SHELBY )
On the 5th day of May 1998, before me personally came Xxxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that
she is the Assistant Secretary of Xxxxxx & Xxxxx Corporation, the corporation
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that she signed her name thereto by like authority.
/s/ XXX XXXXXXX
----------------------
Notary Public
State of Tennessee
6
Exhibit A
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITORY") (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY AND ANY PAYMENT
IS MADE TO CEDE & CO., 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.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FXR- -------------- ------------------
XXXXXX & XXXXX CORPORATION
MEDIUM-TERM NOTE
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S) DEFAULT RATE: %
[ ] _______ and ______
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[ ] United States [ ] $1,000 and integral AGENT:
dollars multiples thereof
[ ] Other: [ ] Other:
------------------------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
X-0
XXXXXXXX XXXXXXXX OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
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Xxxxxx & Xxxxx Corporation, a Tennessee corporation (the "Company", which
term includes any successor entity under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ,
or registered assigns, the principal sum of , on the Stated
Maturity Date specified above (or any Redemption Date or Repayment Date, each as
defined on the reverse hereof) (each such Stated Maturity Date, Redemption Date
or Repayment Date being hereinafter referred to as the "Maturity Date" with
respect to the principal repayable on such date) and to pay interest thereon, at
the Interest Rate per annum specified above, until the principal hereof is paid
or duly made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the Default Rate per annum specified
above on any overdue principal, premium and/or interest. The Company will pay
interest in arrears on each Interest Payment Date (i.e., each August 1 and
February 1), if any, specified above (each, an "Interest Payment Date"),
commencing with the first Interest Payment Date next succeeding the Original
Issue Date specified above, and on the Maturity Date; PROVIDED, HOWEVER, that if
the Original Issue Date occurs between a Record Date (as defined below) and the
next succeeding Interest Payment Date, interest payments will commence on the
second Interest Payment Date next succeeding the Original Issue Date to the
holder of this Note on the Record Date with respect to such second Interest
Payment Date. Interest on this Note will be computed on the basis of a 360-day
year of twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (i.e., July 15 and January 15) (each, a "Record Date"); PROVIDED,
HOWEVER, that interest payable on the Maturity Date will be payable to the
person to whom the principal hereof and premium, if any, hereon shall be
payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the holder on any
Record Date, and shall be paid to the person in whose name this Note is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee hereinafter referred to, notice whereof shall be given to the holder of
this Note by the Trustee not less than 10 calendar days prior to such Special
Record Date or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which this Note
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this Note
due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in the Borough of Manhattan, The City of New York, currently located at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other paying agency
in the Borough of Manhattan, The City of New York, as the Company may determine;
PROVIDED,
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HOWEVER, that payment to the Depository may be made by wire transfer to the
account designated by the Depository in writing; PROVIDED FURTHER, HOWEVER, that
if the Specified Currency specified above is other than United States dollars
and such payment is to be made in the Specified Currency in accordance with the
provisions set forth below, such payment will be made by wire transfer of
immediately available funds to an account with a bank designated by the holder
hereof at least 15 calendar days prior to the Maturity Date, provided that such
bank has appropriate facilities therefor and that this Note (and, if applicable,
a duly completed repayment election form) is presented and surrendered at the
aforementioned office of the Trustee in time for the Trustee to make such
payment in such funds in accordance with its normal procedures.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the required payment of principal, premium, if any, and/or
interest shall be made on the next succeeding Business Day with the same force
and effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be, to the date of such
payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York; PROVIDED, HOWEVER, that if the Specified Currency is other
than United States dollars and any payment is to be made in the Specified
Currency in accordance with the provisions hereof, such day is also not a day on
which banking institutions are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as defined below) of
the country issuing the Specified Currency (or, if the Specified Currency is
European Currency Units ("ECUs"), is not a day that appears as an ECU
non-settlement day on the display designated as "ISDE" on the Xxxxxx Monitor
Money Rates Service (or a day so designated by the ECU Banking Association) or,
if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECUs cannot be settled in the
international interbank market). "Principal Financial Center" means the capital
city of the country issuing the Specified Currency, except that with respect to
United States dollars, Australian dollars, Deutsche marks, Dutch guilders,
Italian lire, Swiss francs and ECUs, the "Principal Financial Center" shall be
The City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
The Company is obligated to make payment of principal, premium, if any, and
interest in respect of this Note in the Specified Currency (or, if the Specified
Currency is not at the time of such payment legal tender for the payment of
public and private debts, in such other coin or currency of the country which
issued the Specified Currency as at the time of such payment is legal tender for
the payment of such debts). If the Specified Currency is other than United
States dollars, except as otherwise provided below, any such amounts so payable
by the Company will be converted by the Exchange Rate Agent specified above into
United States dollars for payment to the holder of this Note.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
A-3
bid quotation for United States dollars in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of whom may be the Exchange Rate Agent) selected
by the Exchange Rate Agent and approved by the Company for the purchase by the
quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of the Specified
Currency payable to all holders of Notes scheduled to receive United States
dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the holder of this Note
by deductions from such payments. If no such bid quotations are available,
payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust office in The City of New York on or prior to the
applicable Record Date or at least 16 calendar days prior to the Maturity Date,
as the case may be. Such written request may be mailed or hand delivered or
sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 16 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars until
such Specified Currency is again available. The amount of each payment in
United States dollars shall be computed by the Exchange Rate Agent on the basis
of the equivalent of the composite currency
A-4
in United States dollars. The component currencies of the composite currency
for this purpose (collectively, the "Component Currencies" and each, a
"Component Currency") shall be the currency amounts that were components of
the composite currency as of the last day on which the composite currency was
used. The equivalent of the composite currencyin United States dollars shall
be calculated by aggregating the United States dollar equivalents of the
Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Exchange Rate Agent on the
basis of the most recently available Market Exchange Rate for each such
Component Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note and the
Company and the Exchange Rate Agent shall have no liability therefor.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified on the face hereof, in an addendum
hereto, which further provisions shall have the same force and effect as if set
forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
A-5
IN WITNESS WHEREOF, Xxxxxx & Xxxxx Corporation has caused this Note to be
duly executed by one of its duly authorized officers.
XXXXXX & XXXXX CORPORATION
By________________________________
Title:
[SEAL]
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the
series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By____________________________
Authorized Signatory
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[REVERSE OF NOTE]
XXXXXX & XXXXX CORPORATION
MEDIUM-TERM NOTE
This Note is one of a duly authorized series of Debt Securities (the "Debt
Securities") of the Company issued and to be issued under an Indenture, dated as
of January 15, 1992, as amended, modified or supplemented from time to time (the
"Indenture"), between the Company and The Chase Manhattan Bank (as successor to
Xxxxxx Guaranty Trust Company of New York and First Trust of New York National
Association), as Trustee (the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the holders of the Debt Securities, and of the terms upon which the
Debt Securities are, and are to be, authenticated and delivered. This Note is
one of the series of Debt Securities designated as "Medium-Term Notes Due Nine
Months or More From Date of Issue" (the "Notes"). All terms used but not
defined in this Note or in an addendum hereto shall have the meanings assigned
to such terms in the Indenture or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S.$1,000 and integral multiples thereof or the minimum
authorized denomination specified on the face hereof (the "Authorized
Denomination").
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on any
date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or the
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S.$1,000 or such minimum Authorized Denomination), at
the Redemption Price (as defined below), together with unpaid interest accrued
thereon to the date fixed for redemption (each, a "Redemption Date"), on notice
given no more than 60 nor less than 30 calendar days prior to the Redemption
Date and in accordance with the provisions of the Indenture. The "Redemption
Price" shall initially be the Initial Redemption Percentage specified on the
face hereof multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary
of the Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof until the Redemption Price is 100% of unpaid
principal amount to be redeemed. In the event of redemption of this Note in
part only, a new Note of like tenor for the unredeemed portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of the
holder hereof on the Optional Repayment Date(s), if any, specified on the face
hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any
A-7
remaining principal amount hereof shall be at least U.S.$1,000 or such minimum
Authorized Denomination), at a repayment price equal to 100% of the principal
amount to be repaid, together with unpaid interest accrued thereon to the date
fixed for repayment (each, a "Repayment Date"). For this Note to be repaid,
this Note must be received, together with the form hereon entitled "Option to
Elect Repayment" duly completed, by the Trustee at its corporate trust office
not more than 60 nor less than 30 calendar days prior to the Repayment Date.
Exercise of such repayment option by the holder hereof will be irrevocable. In
the event of repayment of this Note in part only, a new Note of like tenor for
the unrepaid portion hereof and otherwise having the same terms as this Note
shall be issued in the name of the holder hereof upon the presentation and
surrender hereof.
If this Note is an Original Issue Discount Note as specified on the face
hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(1) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this Note
(if applicable), multiplied by the Initial Redemption Percentage (as adjusted by
the Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued so as to cause the yield on the Note to be
constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption that
the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial Period")
is shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Debt Securities at any time by the
Company and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Debt Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the
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holders of not less than a majority of the aggregate principal amount of the
outstanding Debt Securities of any series, on behalf of the holders of all such
Debt Securities, to waive compliance by the Company with certain provisions of
the Indenture. Furthermore, provisions in the Indenture permit the holders of
not less than a majority of the aggregate principal amount of the outstanding
Debt Securities of any series, in certain instances, to waive, on behalf of all
of the holders of Debt Securities of such series, certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the holder
of this Note shall be conclusive and binding upon such holder and upon all
future holders of this Note and other Notes issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note and all documents, agreements, understandings and arrangements
relating to any transaction contemplated hereby or thereby have been executed or
entered into by an officer of the Company in his/her capacity as an officer of
the Company which has been formed as a Tennessee corporation, and not
individually, and neither the trustees, officers or shareholders of the Company
shall be bound or have any personal liability hereunder or thereunder. Each
party hereto shall look solely to the assets of the Company for satisfaction of
any liability of the Company in respect of this Note and all documents,
agreements, understandings and arrangements relating to any transaction
contemplated hereby or thereby and will not seek
A-9
recourse or commence any action against any of the trustees, officers or
shareholders of the Company or any of their personal assets for the performance
or payment of any obligation hereunder or thereunder. The foregoing shall also
apply to any future documents, agreements, understandings, arrangements and
transactions between the parties hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
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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 - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|______________________________|_______________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
_________________________________________________ Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:_____________________
___________________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or enlargement
or any change whatsoever.
A-11
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at __________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, currently located at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, this Note with this "Option to
Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $
Date: _____________________ __________________________________________
Notice: The signature(s) on this Option to
Elect Notice: The signature(s) on this
correspond with the name(s) as written upon
the face of this Note in every particular,
without alteration or enlargement or any
change whatsoever.
A-12
