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EXHIBIT 4.2
XXXXXX INDUSTRIES, INC.,
Issuer
To
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
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Supplemental Indenture No. 1
Dated as of March 1, 1999
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6.80% Notes due 2004
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SUPPLEMENTAL INDENTURE NO. 1, dated as of March 1, 1999, between XXXXXX
INDUSTRIES, INC., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association organized under the laws of
the United States of America, as Trustee (herein called the "Trustee") (this
"Supplemental Indenture").
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the Trustee an
Indenture dated as of March 1, 1999 (the "Senior Indenture"), a form of which
will be filed with the Securities and Exchange Commission as an exhibit to the
Company's Post-Effective Amendment No. 1 to Registration Statement on Form S-3
(Registration No. 333-25233), providing for the issuance from time to time of
Securities of the Company in series.
Section 301 of the Senior Indenture provides for various matters with
respect to any series of Securities issued under the Senior Indenture to be
established in an indenture supplemental to the Senior Indenture.
Section 901(8) of the Senior Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Senior Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Senior Indenture.
The Board of Directors of the Company (or a duly authorized committee
thereof) has duly adopted resolutions authorizing the Company to execute and
deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this Supplemental
Indenture, when duly executed and delivered, a valid and binding agreement in
accordance with its terms and for the purposes herein expressed, have been
performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the series
of Securities provided for herein by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities of the series, as follows:
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
SECTION 1.1 RELATION TO SENIOR INDENTURE.
This Supplemental Indenture constitutes an integral part of the Senior
Indenture.
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SECTION 1.2 DEFINITIONS.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined in this Supplemental
Indenture shall have the respective meanings assigned to them in the Senior
Indenture; and
(2) All references in this Supplemental Indenture to Articles and
Sections, unless otherwise specified, refer to the corresponding Articles and
Sections of this Supplemental Indenture.
"Attributable Debt" means, with respect to any Sale and Lease-Back
Transaction as of any particular time, the present value discounted at the rate
of interest implicit in the terms of the lease of the obligations of the lessee
under such lease for net rental payments during the remaining term of the lease.
"Business Day" means any calendar day that is not a Saturday, Sunday or
legal holiday in New York, New York and on which commercial banks are open for
business in New York, New York.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term ("Remaining Life") 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 (1) the average of five Reference
Treasury Dealer Quotations for the applicable Redemption Date, after excluding
the highest and lowest Reference Treasury Dealer Quotations, or (2) if the
Independent Investment Banker obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Consolidated Net Worth" means the amount of total stockholders' equity
shown in the most recent consolidated statement of financial position of the
Company.
"Debt" has the meaning specified in Section 2.5.
"Funded Debt" means indebtedness for money borrowed which by its terms
matures at, or is extendible or renewable at the option of the obligor to, a
date more than twelve months after the date of the creation of such
indebtedness.
"Independent Investment Banker" means Xxxxxx Xxxxxxx & Co. Incorporated
or, if such firm is unwilling or unable to select the Comparable Treasury Issue,
an independent investment banking institution of national standing appointed by
the Trustee.
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"Interest Payment Date" has the meaning specified in Section 2.3.
"mortgage" or "mortgages" has the meaning specified in Section 2.5.
"Notes" has the meaning specified in Section 2.1.
"Reference Treasury Dealer" means (1) Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxx Brothers Inc. and Prudential Securities Incorporated 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"), the Company shall substitute therefor another
Primary Treasury Dealer and (2) any other Primary Treasury Dealer selected by
the Independent Investment Banker after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Independent Investment Banker, 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 Independent Investment Banker at 5:00
p.m., New York City time, on the third Business Day preceding such Redemption
Date.
"Regular Record Date" has the meaning specified in Section 2.3.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Subsidiary of any property,
whereby such property had been sold or transferred by the Company or any
Subsidiary to such Person.
"Subsidiary" means a corporation, partnership or other entity more than
50% of the outstanding voting securities of which is owned, directly or
indirectly, by the Company or one or more other Subsidiaries, or by the Company
and one or more other Subsidiaries. For purposes of this definition, "voting
securities" means securities which ordinarily have voting power for the election
of a governing board, whether at all times or only so long as no senior class of
securities has such voting power by reason of any contingency.
"Treasury Rate" means, with respect to any Redemption Date, (1) the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15 (519)" or any successor publication which is published weekly
by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue shall be
determined and the Treasury Rate shall be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month) or (2) if such
release (or any successor release) is not published during the week preceding
the calculation date or does not contain such yields, the rate
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per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be
calculated on the third Business Day preceding the Redemption Date.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 TITLE OF SECURITIES; STATED MATURITY.
There shall be a series of Securities designated the "6.80% Notes due
2004 " (the "Notes"). Unless earlier redeemed, as herein provided, the Stated
Maturity of the principal of the Notes shall be April 15, 2004.
SECTION 2.2 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT.
The aggregate principal amount of the Notes shall be limited to
$325,000,000, and, except as provided in this Section and in Section 306 of the
Senior Indenture, the Company shall not execute and the Trustee shall not
authenticate or deliver Notes in excess of such aggregate principal amount.
Nothing contained in this Section 2.2 or elsewhere in this Supplemental
Indenture, or in the Notes, is intended to or shall limit execution by the
Company or authentication or delivery by the Trustee of Notes under the
circumstances contemplated by Sections 304, 305, 306, 907, 1107 and 1505 of the
Senior Indenture, or any Notes which, pursuant to Section 303 of the Senior
Indenture, are deemed never to have been authenticated and delivered under the
Senior Indenture.
SECTION 2.3 INTEREST AND INTEREST RATES.
The Notes will bear interest at an annual rate of 6.80% from March 9,
1999 or from the most recent Interest Payment Date to which interest has been
paid or provided for, payable semiannually on April 15 and October 15 of each
year, commencing October 15, 1999 (each, an "Interest Payment Date"), to the
Person in whose name such Note is registered at the close of business on April 1
or October 1 next preceding such Interest Payment Date (each a "Regular Record
Date"). Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months. The interest so payable on any Note which is not
punctually paid or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the Person in whose name such Note is
registered on the relevant Regular Record Date, and such Defaulted Interest
shall be payable to the Person in whose name such Note is registered on the
Special Record Date or other specified date determined in accordance with the
Senior Indenture.
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SECTION 2.4 REDEMPTION.
(a) The Notes may be redeemed at the option of the Company, in whole or
in part, at any time on not less than 30 nor more than 60 days' prior notice by
the Company to the Trustee at a redemption price equal to the greater of (1)
100% of their principal amount or (2) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to the
Redemption Date 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 either
case, accrued and unpaid interest on the principal amount being redeemed to such
Redemption Date.
(b) If less than all of the Notes are to be redeemed, the Trustee shall
select the Notes or portions thereof to be redeemed by such method as the
Trustee deems fair and appropriate. Upon surrender of a Note that is to be
redeemed in part, the Trustee shall authenticate for the Holder a new Note equal
in principal amount to the unredeemed portion of the Note surrendered.
(c) The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
SECTION 2.5 LIMITATION ON LIENS.
So long as any Notes are Outstanding, the Company will not, nor will it
permit any Subsidiary to, issue, assume, guarantee or suffer to exist any debt
for money borrowed ("Debt") if such Debt is secured by a mortgage, pledge,
security interest or lien (a "mortgage" or "mortgages") upon any properties of
the Company or any Subsidiary or upon any securities or indebtedness of any
Subsidiary (whether such properties, securities or indebtedness is now owned or
hereafter acquired) without in any such case effectively providing that the
Notes (and all other series of Securities under the Senior Indenture) shall be
secured equally and ratably with (or prior to) such Debt, except that the
foregoing restrictions shall not apply to:
(a) mortgages on any property acquired, constructed or
improved by the Company or any Subsidiary (or mortgages on the
securities of a special purpose Subsidiary which holds no material
assets other than the property being acquired, constructed or improved)
after the date of the Senior Indenture which are created within 180
days after such acquisition (or in the case of property constructed or
improved, after the completion and commencement of commercial operation
of such property, whichever is later) to secure or provide for the
payment of the purchase price or cost thereof; provided that in the
case of such construction or improvement the mortgages shall not apply
to any property owned by the Company or any Subsidiary before such
construction or improvement other than (1) unimproved real property on
which the property so constructed, or the improvement, is located or
(2) personal property which is so improved;
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(b) mortgages existing on the date of issuance of the Notes,
existing mortgages on property acquired (including mortgages on any
property acquired from a Person which is consolidated with or merged
with or into the Company or a Subsidiary) or mortgages outstanding at
the time any corporation, partnership or other entity becomes a
Subsidiary; provided that such mortgages shall only apply to property
owned by such corporation, partnership or other entity at the time it
becomes a Subsidiary or that is acquired thereafter other than from the
Company or another Subsidiary;
(c) mortgages in favor of the Company or any Subsidiary;
(d) mortgages in favor of domestic or foreign governmental
bodies to secure advances or other payments pursuant to any contract or
statute or to secure indebtedness incurred to finance the purchase
price or cost of constructing or improving the property subject to such
mortgages, including mortgages to secure Debt of the pollution control
or industrial revenue bond type; or
(e) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
mortgage referred to in the foregoing clauses (a), (b), (c) or (d),
inclusive; provided that the principal amount of Debt secured thereby
shall not exceed the principal amount of Debt so secured at the time of
such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the
property which secured the mortgage so extended, renewed or replaced
(plus improvements in such property).
In addition to the foregoing, the Company and any Subsidiary may,
without securing the Notes, issue, assume or guarantee secured Debt that, with
certain other Debt described in the following sentence, does not exceed 15% of
Consolidated Net Worth, as shown on a consolidated balance sheet of the Company
as of a date not more than 90 days prior to the proposed transaction, prepared
by the Company in accordance with generally accepted accounting principles. The
other Debt to be aggregated for purposes of this exception is all Attributable
Debt in respect of Sale and Lease-Back Transactions of the Company and its
Subsidiaries under the exception in clause (e)(2) of Section 2.6 existing at
such time.
SECTION 2.6 LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS.
So long as any Notes are Outstanding, the Company will not, nor will it
permit any Subsidiary to, enter into any Sale and Lease-Back Transaction, other
than any Sale and Lease-Back Transaction:
(a) entered into within 180 days of the later of the
acquisition or placing into service of the property subject thereto by
the Company or Subsidiary;
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(b) involving a lease of less than five years;
(c) entered into in connection with an industrial revenue bond
or pollution control financing;
(d) between the Company and/or one or more Subsidiaries;
(e) as to which the Company or such Subsidiary would be
entitled to incur Debt secured by a mortgage on the property to be
leased in an amount equal to the Attributable Debt with respect to such
Sale and Lease-Back Transaction without equally and ratably securing
the Notes (1) under clauses (a) through (e) of Section 2.5 or (2) under
the last paragraph of Section 2.5; or
(f) as to which the Company will apply an amount equal to the
net proceeds from the sale of the property so leased to (1) the
retirement (other than any mandatory retirement), within 180 days of
the effective date of any such Sale and Lease-Back Transaction, of
Notes, of other debt securities issued under the Senior Indenture or of
Funded Debt of the Company or a Subsidiary or (2) the purchase or
construction of other property, provided that such property is owned by
the Company or a Subsidiary free and clear of all mortgages.
SECTION 2.7 EVENTS OF DEFAULT.
All Events of Default specified in Section 501 of the Senior Indenture
shall apply to the Notes except for the Events of Defaults specified in clause
(5) of Section 501 of the Senior Indenture.
SECTION 2.8 PLACE OF PAYMENT.
The Place of Payment where the Notes may be presented or surrendered
for payment, where the Notes may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Company in respect of the
Notes and the Senior Indenture may be served in the Borough of Manhattan, The
City of New York, New York and the offices or agency maintained by the Company
for such purpose shall initially be c/o Norwest Corporate Trust, c/o Depository
Trust Company, 00 Xxxxx Xxxxxx, 0xx Xxxxx, XXXX Xxxxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
SECTION 2.9 METHOD OF PAYMENT.
Payment of the principal of and interest on the Notes 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, New York (which shall initially be an office
or agency of the Trustee), in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company, payments of
principal, premium, if any, and interest on the Notes may be made (i) by check
mailed to the address of the Person entitled
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thereto as such address shall appear in the Security Register of Holders of the
Notes or (ii) by wire transfer to an account maintained by the Person entitled
thereto as specified in the Security Register of Holders of the Notes.
SECTION 2.10 DENOMINATION.
The Notes will be issued in denominations of $1,000 and integral
multiples thereof.
SECTION 2.11 CURRENCY.
Principal and interest on the Notes shall be payable in United States
Dollars.
SECTION 2.12 REGISTERED SECURITIES.
The Notes shall be issuable and transferable in fully registered form,
without coupons.
SECTION 2.13 FORM OF NOTES.
Notwithstanding Section 201 of the Senior Indenture, the Notes shall be
substantially in the form attached as Exhibit A hereto. If specified in the
Company Order delivered in connection with the issuance of the Notes pursuant to
Section 303 of the Senior Indenture, some or all of the Notes may be issued in
the form of Global Securities.
SECTION 2.14 SECURITY REGISTRAR AND PAYING AGENT.
The Trustee shall initially serve as the Security Registrar and Paying
Agent for the Notes.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 RATIFICATION OF SENIOR INDENTURE.
Except as expressly modified or amended hereby, the Senior Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 3.2 DEFEASANCE.
The Senior Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness of the Company on the Notes and (b) certain
restrictive covenants including for the Notes those covenants set forth in
Sections 2.5 and 2.6 and the related Defaults and Events of
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Defaults, upon compliance by the Company with certain conditions set forth
therein, which provisions apply to the Notes.
SECTION 3.3 GOVERNING LAW.
THIS SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS. This Supplemental Indenture is subject to
the provisions of the Trust Indenture Act and shall, to the extent applicable,
be governed by such provisions.
SECTION 3.4 COUNTERPARTS.
This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 3.5 CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Senior Indenture with the same force
and effect as if those terms and conditions were repeated at length herein and
made applicable to the Trustee with respect hereto.
SECTION 3.6 TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The Trustee shall not be responsible in any manner for or in respect of
the validity or sufficiency of this Supplemental Indenture, or for or in respect
of the recitals contained herein, all of which recitals are made by the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this 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 written above.
XXXXXX INDUSTRIES, INC.
By: /s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
President and Chief
Operating Officer
[Corporate Seal]
Attest:
/s/ XXXXXX XXXXXXXXX
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Xxxxxx XxXxxxxxx
Secretary
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, Trustee
By: /s/ XXXXXXX X. XXXXXXXXXX
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Xxxxxxx X. Xxxxxxxxxx
Vice President
[Corporate Seal]
Attest:
/s/ XXXXXX X. XXXXXXXXX
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Xxxxxx X. Xxxxxxxxx
Assistant Secretary
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Exhibit A to
Supplemental Indenture
[FORM OF FACE OF NOTE]
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("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 in such other name as is
requested by an authorized representative of DTC (and any payment 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.]*
[This Security is a Global Security within the meaning of the Senior Indenture
hereinafter referred to and is registered in the name of the Depositary or a
nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof and no such transfer may be registered, except
in the limited circumstances described in the Senior Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances.]*
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*Delete brackets and insert legends if Global Securities.
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NO. CUSIP
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XXXXXX INDUSTRIES, INC.
6.80% Note due 2004
XXXXXX INDUSTRIES, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein referred to as the "Company"),
for value received, hereby promises to pay to ____________________ or registered
assigns, the principal sum of _________________ DOLLARS ($__________) on April
15, 2004, at the agency of the Company in the Borough of Manhattan, The City of
New York, New York, or at such other office or agency of the Company as may be
maintained for such purpose, 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 to the registered Holder hereof, as hereinafter
provided, interest on said principal sum at the rate per annum specified in the
title of this Note, in like coin or currency, semiannually on April 15 and
October 15 in each year, commencing October 15, 1999. Interest shall accrue from
the most recent date to which interest has been paid or duly provided for, or if
no interest has been paid or duly provided for, from March 9, 1999. The
interest so payable on any April 15 or October 15 will, subject to certain
exceptions provided in the Supplemental Indenture hereinafter referred to, be
paid to the Person in whose name this Note is registered at the close of
business on the April 1 or October 1, as the case may be, next proceeding such
April 15 or October 15 whether or not such April 1 or October 1 is a Business
Day. Interest shall be computed on the basis of a 360-day year or twelve 30-day
months. Payment of principal, premium, if any, and interest may be made at the
option of the Company either (1) by check mailed by first-class mail to the
address of the Person entitled thereto at such address as shall appear on the
Security Register of Holders of Notes or (ii) by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security Register
of Holders of Notes. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes of this series not less than
10 days prior to such Special Record Date, or be paid in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes of this series may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Senior Indenture.
As provided in the Supplemental Indenture, this Note shall be deemed to
be a contract made under the laws of the State of New York, and for all purposes
shall be governed by and construed in accordance with the laws of such State.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as though fully set forth at this place.
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Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, XXXXXX INDUSTRIES, INC. has caused this instrument
to be duly executed under its corporate seal.
Dated:
XXXXXX INDUSTRIES, INC.
By:
--------------------------
Name:
Title:
[Corporate Seal]
Attest:
------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Supplemental
Indenture.
Norwest Bank Minnesota,
National Association,
as Trustee
By:
--------------------------
Authorized Signatory
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[FORM OF REVERSE OF NOTE]
XXXXXX INDUSTRIES, INC.
6.80% Note due 2004
(1) Indenture. This Note is one of a duly authorized issue of
Securities of the Company known as its 6.80% Notes due 2004 (herein
referred to as the "Notes"), limited to the aggregate principal amount of
$325,000,000, all issued or to be issued in one or more series under and
pursuant to an indenture, dated as of March 1, 1999 (herein referred as the
"Senior Indenture"), between the Company and Norwest Bank Minnesota, National
Association, as trustee (herein referred to as the "Trustee"), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the respective rights, limitations of rights, obligations, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Notes. This Note is one of the series designated on the face hereof, and is
issued pursuant to an indenture supplemental to the Senior Indenture, dated as
of March 1, 1999, from the Company to the Trustee, relating to the Notes of this
series (the "Supplemental Indenture").
(2) Redemption. The Notes may be redeemed at the option of the Company,
in whole or in part, at any time, on not less than 30 nor more than 60 days'
prior notice by the Company to the Trustee at a redemption price equal to the
greater of (1) 100% of their principal amount or (2) the sum of the present
values of the remaining scheduled payments of principal and interest thereof
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day
year consulting of twelve 30-day months) at the Treasury Rate plus 25 basis
points, plus, in either case, accrued and unpaid interest on the principal
amount being redeemed to such Redemption Date.
If less than all of the Notes are to be redeemed, the Trustee shall
select the Notes or portions thereof to be redeemed by such method as the
Trustee deems fair and appropriate in accordance with Section 1103 of the Senior
Indenture. Notice of such redemption shall be mailed to the Holders of Notes to
be redeemed in whole or in part by first-class mail at their addresses as they
shall appear upon the registry books of the Company, all as provided in the
Senior Indenture. Any such notice which is mailed in the manner hereinabove
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice.
In the event of redemption of the Notes in part only, a new Note or
Notes of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder upon the surrender hereof.
(3) No Mandatory Redemption. The Company is not required to make
mandatory redemption or sinking fund payments with respect to the Notes.
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(4) Defeasance. The Senior Indenture and the Supplemental Indenture
contain provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Note and (b) certain restrictive covenants and the related
Defaults and Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions shall apply to this Note.
(5) Defaults and Remedies. If an Event of Default (as defined in
Section 501 of the Senior Indenture as amended by Section 2.7 of the
Supplemental Indenture) with respect to the Notes shall have occurred and be
continuing, the principal amount of this Note plus any accrued interest to the
date of acceleration may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the conditions
provided in the Senior Indenture.
(6) Amendments and Waivers. The Senior 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 Holder under the
Senior 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 Senior Indenture also contains provisions permitting the
Holders of a specified percentage in aggregate principal amount of the Notes at
the time outstanding, on behalf of the Holders of all the Notes, to waive
compliance by the Company with certain provisions of the Senior Indenture and
certain past defaults under the Senior Indenture and their consequences. Any
such consent or waiver by or on behalf of the Holder of the Note (unless
effectively revoked as provided in the Senior Indenture) shall be conclusive and
binding upon such Holder, upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange here for whether
or not notation of such consent or waiver is made upon this Note or such other
Note.
(7) Denominations, Transfer and Exchange. The Notes are issuable as
fully registered Notes without coupons in denominations of $1,000 and any
integral multiple of $1,000. Upon surrender of this Note, the transfer of this
Note is registrable by the registered Holder hereof in person or by his attorney
duly authorized in writing on the Security Register of Holders of Notes at the
office or agency to be maintained by the Company referred to on the face hereof,
subject to the terms of the Senior Indenture but without payment of any charge
other than a sum sufficient to reimburse the Company for any tax or other
governmental charge incident thereto. Upon any such registration or transfer, a
new Note or Notes of authorized denomination or denominations, for the same
aggregate principal amount, will be issued to the transferee in exchange hereof.
Principal of, premium, if any, and interest on this Note are payable at the
office of the Company referred to on the face hereof, except that, at the option
of the Company, payment of principal, premium, if any, and interest hereon may
be made either (a) by check mailed to the address of the Person entitled thereto
as such address shall appear on the Security Register of Holders of Notes or (b)
by transfer to an account maintained by the Person entitled thereto as specified
in the Security Register of Holders of Notes.
Prior to the presentation for registration of transfer, the Company,
the Trustee, any paying agent, and any Security Registrar may deem and treat the
person in whose name this Note shall be
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registered upon the Security Register of Holders of Notes as the absolute owner
of this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of or on account of the principal hereof, premium, if any and interest
due hereon, and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Security Registrar shall be affected by any notice
to the contrary. All such payments shall be valid and effectual to satisfy and
discharge the liability on this Note to the extent of the sum or sums so paid.
(8) Obligations and Recourse. No reference herein to the Senior
Indenture or the Supplemental Indenture and no provision of this Note or of the
Senior Indenture or the Supplemental Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the place, at the
respective times, at the rate and in the currency herein prescribed. No recourse
shall be had for the payment of the principal of, premium, if any, or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Senior Indenture or the Supplemental
Indenture or any other indenture supplemental thereto against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
Terms used in this Note and defined in the Senior Indenture or the
Supplemental Indenture, as the case may be, are used herein as therein defined.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
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(Print or type assignee's social security or tax identification number)
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(Print or type name, address and zip code of assignee)
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and irrevocably appoint ____________________________________________ agent to
transfer this Note on the Books of the Company. The agent may substitute another
to act for him.
Date: Your Signature:
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(Sign exactly as your name appears on the other side of this Note)
Signature(s) must be guaranteed by an
institution which is a member of one
of the following recognized signature
Guarantee Programs: (i) The
Securities Transfer Agent Medallion
Program (STAMP); (ii) The New York
Stock Exchange Medallion Program
(MNSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv)
another guarantee program acceptable
to the Trustee.
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Signature Guarantee
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