Exhibit 4(b)
MACSAVER FINANCIAL SERVICES, INC.
7.40 % Notes Due February 15, 2002
Officers' Certificate
Pursuant to the Indenture dated as of August 1, 1996 (the "Indenture"),
among MacSaver Financial Services, Inc., a Delaware corporation, as Issuer (the
"Company"), Heilig-Meyers Company, a Virginia corporation, as Guarantor (the
"Guarantor"), and First Union National Bank of Virginia, as Trustee (the
"Trustee"), and resolutions duly adopted by the Company's Board of Directors on
June 28, 1996 and the Guarantor's Board of Directors on April 3, 1996 and
February 5, 1997, this Officers' Certificate is being delivered in accordance
with Section 102 of the Indenture to the Trustee to establish the terms of a
series of Securities in accordance with Section 301 of the Indenture and to
establish the forms of the Securities of such series in accordance with Section
201 of the Indenture.
Capitalized terms use herein and not otherwise defined herein shall
have the meanings assigned to them in the Indenture.
All conditions precedent provided for in the Indenture relating to the
establishment of a series of Securities and to the authentication and delivery
of the Securities have been complied with. The Company is authorized to issue up
to $100,000,000 in aggregate principal amount of the Securities (except as noted
in Sections 303, 304, 305, 306, 905 or 1107 of the Indenture).
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A. Establishment of Series pursuant to Section 301 of
Indenture.
There is hereby established pursuant to Section 301 of the Indenture a
series of Securities which shall have the following terms (the "Notes"):
(1) The series of Securities hereby being authorized shall
bear the title "7.40% Notes Due February 15, 2002".
(2) The Notes shall be limited to $100,000,000 in aggregate
principal amount (except as noted in Sections 303, 304, 305, 306, 905 or 1107 of
the Indenture).
(3) The Notes shall be issued as Registered Securities only
and as Book-Entry Securities, initially represented by one permanent global
note. The Depository Trust Company shall be the U.S. Depository (the
"Depository") with respect to the Notes. The Notes shall be exchangeable as
provided in the Indenture and in the form of the Note attached as Exhibit A
hereto.
(4) Interest shall be payable to the person in whose name a
Note (or any predecessor Note) is registered at the close of business on the
Regular Record Date (as defined below) next preceding the applicable Interest
Payment Date (as defined below); provided, however, that interest payable at
Maturity shall be payable to the Person to whom principal shall be payable.
(5) The Notes shall mature, and the principal of the
Notes shall be payable on February 15, 2002.
(6) The Notes shall bear interest (computed on the basis of a
360-day year of twelve 30-day months) from February 15, 1997 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, at the rate of 7.40% per annum, until the principal thereof is paid or duly
made available for payment. Interest shall be payable in arrears semi-annually
on February 15 and August 15 of each year, commencing August 15, 1997 (each such
date, an "Interest Payment Date"), to the person in whose name a Note (or any
predecessor Note) is registered at the close of business on the February 1 or
August 1 next preceding such Interest Payment Date (each such date, a "Regular
Record Date"); provided, however, that interest payable at Maturity shall be
payable to the person to whom principal shall be payable.
(7) Principal of, any premium and interest on or any
Additional Amounts with respect to the Notes shall be payable at the office or
agency of the Company to be maintained in the Borough of Manhattan, The City of
New York, initially at First Union National Bank, 40 Broad Street, 5th Floor,
Suite 550, New
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York, New York, 10004; 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 it appears on the registry books of the Company at the close
of business on the Regular Record Date corresponding to the relevant Interest
Payment Date. Upon the terms, conditions and circumstances provided in the
Indenture and in the form of Note attached as Exhibit A hereto, the transfer of
the Notes will be registrable and Notes will be exchangeable for Notes of any
authorized denominations and of a like tenor at the corporate trust office of a
security registrar selected by the Company, initially First Union National Bank
(the "Security Registrar"), in the Borough of Manhattan, The City of New York.
(8) The Notes shall not be redeemable prior to
Maturity.
(9) The Notes shall not be subject to redemption or purchase
pursuant to any sinking fund or analogous provision or at the option of any
Holder.
(10) The denomination of the Notes shall be $1,000 and
any integral multiple of $1,000 in excess thereof.
(11) The portion of the principal amount of the Notes which
shall be payable upon declaration of acceleration of the Maturity thereof shall
be the principal amount thereof.
(12) Payments of principal of, any premium or interest
on or any Additional Amounts with respect to the Notes shall be
made in United States dollars.
(13) The principal of, any premium or interest on or any
Additional Amounts with respect to the Notes shall not be payable in any
currency other than United States dollars.
(14) The amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to the Notes shall not be
determined with reference to an index, indices, formula or other method.
(15) Sections 402(2) (relating to defeasance) and
402(3)(relating to covenant defeasance) of the Indenture shall be applicable to
the Notes, and no covenants in addition to those specified in Section 402(3)
relating to the Notes shall be subject to covenant defeasance.
(16) The following additional covenants of the
Guarantor shall apply to the Notes:
(a) Leverage Ratio. The Guarantor shall maintain, as
of the last day of each fiscal year of the Guarantor, a
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ratio of Consolidated Debt to Consolidated Total Capital of not more
than 0.65 to 1.00.
"Consolidated Debt" means the aggregate amount of all Debt of
the Guarantor, the Company and the other Restricted Subsidiaries
determined on a consolidated basis in accordance with GAAP consistently
applied.
"Debt" means Indebtedness less all accounts payable and
expenses incurred in the ordinary course of business which would
otherwise be included as Indebtedness.
"Consolidated Total Capital" means the sum of Consolidated
Debt plus the aggregate amount of total stockholders' equity of the
Guarantor, the Company and the other Restricted Subsidiaries determined
on a consolidated basis in accordance with GAAP consistently applied.
(b) Fixed Charges Coverage Ratio. The Guarantor shall not, and
shall not permit any Restricted Subsidiary to, issue, assume,
guarantee, incur, create or otherwise become liable in respect of any
Debt unless the ratio of Cash Flow to Fixed Charges, calculated for the
immediately preceding period of four consecutive fiscal quarters, after
giving effect, on a pro forma basis as if incurred at the beginning of
such period, to such Debt and to any other Debt incurred since the end
of such period, would equal or exceed 1.15 to 1.00, except that the
Guarantor or any Restricted Subsidiary may issue, assume, guarantee,
incur, create or otherwise become liable in respect of:
(1) Debt of a Restricted Subsidiary payable to the
Guarantor or to a Restricted Subsidiary;
(2) Debt arising under bank loan facilities existing on the
date of the Indenture or established after such date in accordance with
the Indenture (as such facilities may be increased, extended, renewed
or otherwise amended, supplemented or modified from time to time);
(3) Debt of any corporation or other entity outstanding at the
time such corporation or other entity became a Restricted Subsidiary
(and not incurred in contemplation thereof);
(4) Debt incurred to finance the purchase, construction or
other acquisition of assets if such Debt could be secured by such
assets in accordance with the Indenture;
(5) Attributable Debt otherwise permitted under the
Indenture;
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(6) deferred payment obligations representing the unpaid
purchase price of property, assets or services or Debt arising under
any conditional sale or other title retention agreement;
(7) Debt not otherwise permitted by clauses (1) through (6)
above in an aggregate outstanding principal amount not to exceed
$50,000,000; and
(8) Debt incurred in connection with any extension, renewal,
refinancing, replacement or refunding (including successive extensions,
renewals, refinancings, replacements or refundings), in whole or in
part, of any Indebtedness of the Guarantor or any Restricted Subsidiary
(other than Indebtedness incurred pursuant to clause (7) above),
provided that (A) the principal amount of such Debt does not exceed the
sum of the principal amount of the Indebtedness so extended, renewed,
refinanced, replaced or refunded plus all interest accrued thereon and
all related fees and expenses (including, without limitation, any
payments made in connection with the procurement of any required lender
or similar consents), and (B) for purposes of this clause (8), Debt
arising under bank loan facilities may only be refinanced, replaced or
refunded with other bank loan facilities or with Debt that is
subordinated in right of payment to the Notes.
"Cash Flow" means, for any period, the sum of (i) the
consolidated net income of the Guarantor, the Company and the other
Restricted Subsidiaries for such period plus (ii) Lease Expense for
such period plus (iii) Interest Expense for such period plus (iv) the
aggregate amount deducted in determining such consolidated net income
in respect of income taxes, depreciation or amortization.
"Lease Expense" means, for any period, the consolidated lease
expense of the Guarantor, the Company and the other Restricted
Subsidiaries for such period (excluding any portion of lease expense in
respect of Capitalized Leases).
"Interest Expense" means, for any period, the consolidated
interest expense of the Guarantor, the Company and the other Restricted
Subsidiaries for such period (including, without limitation, the
portion of any obligation under Capitalized Leases allocable to
interest expense in accordance with GAAP).
"Fixed Charges" means, for any period, the sum of (i) Lease
Expense for such period plus (ii) Interest Expense for such period.
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(17) The Notes are not issuable upon the exercise of
warrants.
B. Establishment of Note Forms pursuant to Section 201 of
the Indenture.
It is hereby established, pursuant to Section 201 of the Indenture,
that the Notes shall be substantially in the form of the permanent global
security attached as Exhibit A hereto.
C. Other Matters.
Attached as Exhibit B hereto are true and correct copies, certified by
the Secretary or an Assistant Secretary of the Company, of resolutions duly
adopted by the Board of Directors of the Company at a meeting duly called and
held on June 28, 1996 at which a quorum was present and acting throughout; such
resolutions have not been amended, modified, revoked or rescinded and remain in
full force and effect; and such resolutions are the only resolutions and
authorizations adopted by the Company's Board of Directors or any committee
thereof relating to the offering and sale of the Notes.
* * *
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Each of the undersigned has read the sections of the Indenture setting
forth the conditions precedent to the authentication of the Notes and the
definitions related thereto contained therein. Each of the undersigned has
examined the resolutions adopted by the Board of Directors of the Company
relating to the authorization, issuance, authentication and delivery of the
Notes and has conducted such additional examinations as each considers
necessary. In the opinion of each of the undersigned, he or she has made such
examination or investigation as is necessary for him or her to express an
informed opinion as to whether or not the conditions precedent to the
establishment and authentication of a series of Securities contained in the
Indenture have been complied with. In the opinion of each of the undersigned,
all such conditions have been complied with.
Dated: February 25, 1997
MACSAVER FINANCIAL SERVICES, INC.
By: s/ Dossi V. Bhavnagri
-----------------------------
Name: Dossi V. Bhavnagri
Title: Vice President
By: s/ Paige H. Wilson
-----------------------------
Name: Paige H. Wilson
Title: Secretary
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Exhibit A
THIS SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A U.S. DEPOSITORY OR A
NOMINEE OF A U.S. DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE U.S. DEPOSITORY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF
THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE U.S.
DEPOSITORY TO A NOMINEE OF THE U.S. DEPOSITORY OR BY A NOMINEE OF THE U.S.
DEPOSITORY TO THE U.S. DEPOSITORY OR ANOTHER NOMINEE OF THE U.S. DEPOSITORY) MAY
BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS PERMANENT GLOBAL SECURITY
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON EXCEPT PURSUANT TO THE
PROVISIONS HEREOF.
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or 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.
-------------------
MACSAVER FINANCIAL SERVICES, INC.
-------------------
PERMANENT GLOBAL SECURITY
$100,000,000
7.40% Note Due February 15, 2002
-------------------
No. 1 CUSIP No. 556109AB2
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This permanent global Security is one of a duly authorized issue of
securities (herein called the "Securities") of MacSaver Financial Services,
Inc., a Delaware corporation (hereinafter called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred to),
unlimited as to aggregate principal amount, issued and to be issued in one or
more series under an indenture, dated as of August 1, 1996, between the Company,
Heilig-Meyers Company, as Guarantor (the "Guarantor") and First Union National
Bank of Virginia, as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture (as hereinafter defined)), to which
indenture and all indentures supplemental hereto (the indenture as supplemented
being herein called the "Indenture") reference is hereby made for a statement of
the respective rights thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This permanent global Security is one of the series
of Securities designated on the face hereof, which series has been issued in an
aggregate initial principal amount of One Hundred Million United States Dollars.
This permanent global Security represents an aggregate initial principal amount
of One Hundred Million United States Dollars (as adjusted from time to time in
accordance with the terms and provisions hereof and as set forth on Schedule A
hereto, the "Principal Amount") of the Securities of such series, with the
Interest Payment Dates, date of original issuance, and Maturity specified herein
and bearing interest on said Principal Amount at the interest rate specified
herein.
The Company, for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the Principal Amount hereof on February 15, 2002 and to
pay interest (computed on the basis of a 360-day year of twelve 30-day months)
thereon, from February 15, 1997 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, or, if the date of this
permanent global Security is an Interest Payment Date to which interest has been
paid or duly provided for, then from the date hereof semi-annually in arrears on
February 15 and August 15, in each year commencing August 15, 1997, and at
Maturity, at the rate of 7.40% per annum, until the principal hereof is paid or
duly made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this permanent global Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the February 1 or
August 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 shall forthwith cease to be payable to the Holder on such Regular
Record Date and shall be paid either to the Person in whose name this permanent
global Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date to be fixed by the Trustee for the
payment of such Defaulted Interest, notice whereof shall be given to the Holder
of this permanent global Security not less than 10 days prior to such Special
Record Date, or at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in such Indenture. Notwithstanding the foregoing, interest
payable on this Security at Maturity will be payable to the person to whom
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principal is payable.
This permanent global Security is exchangeable for definitive
Registered Securities of this series and of like tenor and of an equal aggregate
principal amount, registered in the name of, and a transfer of this permanent
global Security may be registered to, any Person other than the U.S. Depository
or its nominee, only if (x) the U.S. Depository with respect to the Securities
of this series (the "U.S. Depository") notifies the Company that it is unwilling
or unable to continue as U.S. Depository for this permanent global Security or
if at any time the U.S. Depository ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, as amended, (y) the Company in its
sole discretion determines that this permanent global Security shall be so
exchangeable and executes and delivers to the Trustee a Company Order providing
that this permanent global Security shall be so exchangeable and the transfer
thereof so registrable or (z) there shall have happened and be continuing an
Event of Default or any event which, after notice or lapse of time, or both,
would become an Event of Default with respect to the Securities of the series of
which this permanent global Security is a part. In the event this permanent
global Security is exchangeable pursuant to the preceding sentence, it shall be
exchanged in whole for definitive Registered Securities of this series, of like
tenor and of an equal aggregate principal amount in denominations of $1,000 and
integral multiples of $1,000 in excess thereof, provided that, in the case of
clauses (y) and (z) above, definitive Registered Securities of this series will
be issued in exchange for this permanent global Security only if such definitive
Registered Securities were requested by written notice to the Security Registrar
by or on behalf of a Person who is a beneficial owner of an interest herein
given through the Holder hereof. Any definitive Registered Security of this
series issued in exchange for this permanent global Security shall be registered
in the name of or names of, and the transfer of such Securities may be
registered to such Person or Persons as the Holder hereof shall instruct the
Security Registrar. Except as provided above, owners of beneficial interests in
this permanent global Security will not be entitled to receive physical delivery
of Securities in definitive form and will not be considered the Holders thereof
for any purpose under Indenture.
Any exchange of this permanent global Security or portion hereof for
one or more definitive Registered Securities of this series will be made at the
New York office of the Security Registrar. Upon exchange of any portion of this
permanent global Security for one or more definitive Registered Securities of
this series, the Security Registrar shall endorse Schedule A of this permanent
global Security to reflect the reduction of its Principal Amount by an amount
equal to the aggregate principal amount of the definitive Registered Securities
of this series so issued in exchange, whereupon the Principal Amount hereof
shall be reduced for all purposes by the amount so exchanged and noted. Except
as otherwise provided herein or in the Indenture, until exchanged in full for
one or more definitive Registered Securities of this series, this permanent
global Security shall in all respects be subject to and entitled to the same
benefits and conditions under the Indenture as a duly authenticated and
delivered definitive Registered Security of this series.
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The principal and any interest in respect of any portion of this
permanent global Security payable in respect of an Interest Payment Date or at
the Stated Maturity thereof, in each case occurring prior to the exchange of
such portion for a definitive Registered Security or Securities of this series,
will be paid, as provided herein, to the Holder hereof. If a definitive
Registered Security or Registered Securities of this series are issued in
exchange for any portion of this permanent global Security after the close of
business at the office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, only to the Holder hereof.
Payment of the principal of and any such interest on this permanent
global Security will be made at the offices of First Union National Bank, as
Paying Agent, in the Borough of Manhattan, The City of New York, or at such
other office or agency of the Company as may be designated by it for such
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 shall be
legal tender for the payment of public and private debts; provided, however,
that payment of interest may be made at the option of the Company by United
States dollar check mailed to the addresses of the Persons entitled thereto as
such addresses shall appear in the Security Register or by transfer to a United
States dollar account maintained by the payee with, a bank in The City of New
York (so long as the applicable Paying Agent has received proper transfer
instructions in writing).
This permanent global Security is not subject to redemption prior to
Maturity.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series
(including this permanent global Security) may be declared due and payable in
the manner and with the effect provided in the Indenture. Upon payment (i) of
the amount of principal so declared due and payable and (ii) of interest on any
overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and any interest on
the Securities of this series (including this permanent global Security) shall
terminate.
The Indenture contains provisions for defeasance at any time of (a) the
entire obligations of the Company under this permanent global Security and (b)
certain restrictive covenants and the related defaults and Events of Default,
upon compliance with certain conditions set forth therein, which provisions
shall apply to this permanent global Security.
The Indenture permits, with certain exceptions as therein provided, the
amendment
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thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding on behalf of the Holders of all Securities of such series
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 permanent global Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
permanent global Security, and of any Security issued in exchange here for or in
lieu hereof whether or not notation of such consent or waiver is made upon this
permanent global Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Securities of this series, the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of this series shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as trustee,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Outstanding Securities of this series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that such limitations do not apply
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal of or any interest on this permanent global Security on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this permanent
global Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
interest on this permanent global Security at the times, places, and rate, 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 Registered Securities of the series of
which this permanent global Security is a part may be registered on the Security
Register of the Company, upon surrender of such Securities for registration of
transfer at the office of the Security Registrar, 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 thereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any such registration of transfer
or exchange of
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Securities as provided above, 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 a Registered Security (including this
permanent global Security) for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner thereof for all purposes,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
The Securities of this series of which this permanent global Security
is a part are issuable only in registered form without coupons, in denominations
of $1,000 and any integral multiple thereof. As provided in the Indenture and
the Officers' Certificate setting forth the terms of the Securities of this
series and subject to certain limitations therein set forth, the Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
The Securities of this series (including this permanent global
Security) shall be dated the date of their authentication.
All terms used in this permanent global Security and not defined herein
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or
on behalf of First Union National Bank of Virginia, the Trustee under the
Indenture, or its successors thereunder, by the manual signature of one of its
authorized officers, this permanent global Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: February 25, 1997 MACSAVER FINANCIAL SERVICES, INC.
By:
Name:
Title:
Attest:
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GUARANTEE
For value received, Heilig-Meyers Company, a corporation
organized under the laws of the Commonwealth of Virginia (herein called
the "Guarantor," which term inc udes any successor corporation under
the Indenture referred to in the Security upon which this Guarantee is
endorsed), hereby unconditionally guarantees to the Holder of the
Security upon which this Guarantee is endorsed and to the Trustee on
behalf of the Trustee and such Holder the due and punctual payment of
the principal of, premium, if any, and interest on such Security, any
other amount due and payable pursuant to the terms of the Indenture and
the due and punctual payment of the sinking fund or analogous payments
referred to therein if any, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of
acceleration, call for redemption or otherwise, according to the terms
thereof and of the Indenture referred to therein. In case of the
failure of MacSaver Financial Services, Inc., a corporation organized
under the laws of Delaware (herein called the "Company," which term
includes any successor corporation under such Indenture), punctually to
make any such payment of principal, premium, if any, or interest, the
Guarantor hereby agrees to cause any such payment to be made punctually
when and as the same shall become due and payable, whether at the
Stated Maturity or by declaration of acceleration, call for redemption
or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be
absolute and unconditional, irrespective of, and shall be unaffected
by, any invalidity, irregularity or unenforceability of such Security
or such Indenture, any failure to enforce the provisions of such
Security or such Indenture, or any waiver, modification or indulgence
granted to the Company with respect thereto, by the holder of such
Security or the Trustee or any other circumstance which may otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Guarantor hereby waives the benefits of division and discussion,
diligence, presentment, demand of payment, filing of claims with a
court in the event of merger, insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest or
notice with respect to such Security or the indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Guarantee
will not be discharged except by strict and complete performance of the
obligations contained in such Security and this Guarantee. The
Guarantor hereby agrees that, in the event of a default in payment of
principal of, premium, if any, and interest on such Security, or
default in any sinking fund or analogous payment referred to therein,
legal proceedings may be instituted by the Trustee on behalf of, or by,
the Holder of such Security, on the terms and conditions set forth in
the Indenture, directly against the Guarantor to enforce
8
this Guarantee without first proceeding against the Company.
The Guarantor shall be subrogated to all rights of the Holder
of such Security and the Trustee against the Company in respect of any
amounts paid to such Holder by the Guarantor on account of such
Security pursuant to the provisions of this Guarantee or the Indenture;
provided, however, that the Guarantor shall not be entitled to enforce,
or to receive any payments arising out of or based upon, such right of
subrogation until the principal of, premium, if any, and interest on
all Securities issued under such Indenture shall have been paid in
full.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of
the Guarantor, which is absolute and unconditional, of the due and
punctual payment of principal, premium (if any), and interest on the
Security upon which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication of the Security upon
which this Guarantee is endorsed shall have been manually executed by
or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such
Indenture shall have the meanings assigned to them in such Indenture.
This Guarantee 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 the State of New York.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to
be duly executed under its corporate seal and dated the date on the face hereof.
HEILIG-MEYERS COMPANY
By: ___________________________
Title: __________________
Attest:
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9
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series issued under the Indenture described
herein.
FIRST UNION NATIONAL BANK OF VIRGINIA, as Trustee
By:
Authorized Officer
10
SCHEDULE A
SCHEDULE OF EXCHANGES
Principal amount Remaining Notation made on
exchanged for one principal amount behalf of
or more definitive following such the [Trustee]
Date exchange made Securities exchange [Security Registrar]
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Exhibit B
MacSaver Financial Services, Inc.
Resolutions
RESOLVED, that the Company is hereby authorized to issue and
sell from time to time, together or separately, one or more
series of debt securities consisting of debentures, notes
and/or other unsecured evidences of indebtedness in one or
more series (the "Securities") which may be either senior debt
securities or subordinated debt securities unconditionally
guaranteed as to the payment of principal of, and premium and
interest on, if any, by the Company's parent Heilig-Meyers
Company ("HeiligMeyers"), at prices up to an aggregate initial
offering price of $500,000,000 (or its equivalent, based on
the applicable exchange rate at the time of sale, in one or
more foreign currencies, currency units or composite
currencies as shall be designated by the Company).
RESOLVED, that any one of the President, Vice President or
Treasurer of the Company (each an "Authorized Officer") may at
any time or from time to time, authorize one or more issues of
Securities for sale and, in connection with any such issue,
may determine or approve the structure, terms and conditions
of the issuance of the Securities, including without
limitation:
(a) the type of Securities, their title and
the form of the certificates
representing the Securities;
(b) the amount of the Securities to be
offered and sold at any given time
within the aggregate limitation stated
above;
(c) the specific terms of the Securities,
including without limitation, the issue
price, the currency in which the
Securities will be issued, the interest
rate or the method of determining the
interest rate, the maturity date, the
method of paying principal, prepayment
privileges, sinking fund provisions,
redemption provisions, subordination
provisions and conversion rates;
(d) the form and principal terms of any one
or more indentures, supplemental
indentures, fiscal agency agreements or
other agreements to be executed in
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connection with the issuance of Securities
and the selection and appointment of one or
more trustees, fiscal agents, paying agents
and/or registrars or other agents
thereunder;
(e) whether such Securities will be sold (i)
to institutional investors or other
sophisticated purchasers without
registering such Securities under the
Securities Act of 1933, as amended (the
"Securities Act") or (ii) in a public
offering in the United States and/or
outside the United States through
underwriters, agents or otherwise;
(f) whether the Securities will be marketed,
the selection of managing underwriters,
dealers, placement agents, banks, paying
agents, transfer agents, fiscal agents,
trustees and depositaries and the amount
of any underwriting commissions, fees,
expenses, discounts or agency
commissions, and the principal terms of
any underwriting agreement or
distribution agreement;
(g) the officers of the Company authorized to
execute and deliver any indenture or
indentures, fiscal agency agreement,
underwriting agreement or agreements,
purchase agreement or other agreement or
instrument in connection with the issuance
of the Securities;
(h) the listing of the Securities on any
United States or non-United States
securities exchange and the terms of any
such listing;
(i) the form of any prospectus, prospectus
supplement, pricing supplement or
offering circular relating to such
Securities; and
(j) any and all other terms, conditions and
provisions as any Authorized Officer shall
deem appropriate with respect to the
issuance of the Securities.
RESOLVED, that if an Authorized Officer so directs, any
officer of the Company is hereby, authorized to execute
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and file with the Securities and Exchange Commission one or
more registration statements (which may be filed jointly with
the Company's parent, Heilig-Meyers) and such amendments and
supplements thereto as may be appropriate or necessary to
cause the Securities to be registered under the Securities Act
and the indenture or indentures, if any, to be qualified under
the Trust Indenture Act of 1939, as amended.
RESOLVED, that the Company may make application to such
securities exchanges as an Authorized Officer shall determine
for the listing of the Securities on such exchanges and any
officer of the Company is authorized to make application for
such listing and to execute and file in the name and on behalf
of the Company all applications, statements, certificates,
agreements and other instruments and documents as may be
necessary to accomplish such listings.
RESOLVED, that if an Authorized Officer determines it is
desirable and in the best interest of the Company that the
Securities be qualified or registered for sale in various
states, territories or possessions of the United States, the
District of Columbia or the Commonwealth of Puerto Rico, any
officer of the Company is authorized to determine the states
in which appropriate action shall be taken to qualify or
register for sale all or such part of the Securities as such
officers may deem advisable.
RESOLVED, that any officer of the Company is authorized to
perform on behalf of the Company any and all acts deemed
necessary or advisable to comply with the applicable laws of
any such states and in connection therewith to execute and
file all requisite papers and documents including, but not
limited to, applications, reports, consents and appointments
of attorneys for service of process and documents effecting
the registration or licensing of the Company as a dealer or
broker in securities; and the execution by any such officers
of any such document in connection with the foregoing matter
shall conclusively establish their authority from the Company
and the approval and verification by the Company of the
documents so executed or the action so taken.
RESOLVED, that this Board of Directors hereby adopts the form
of any and all resolutions required by any state authority or
securities exchange in connection with any listing or
registration and any other documents which may be filed or
agreements made pursuant to these resolutions, if (i) in the
opinion of
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any Authorized Officer of the Company so acting the adoption
of such resolutions is necessary or advisable and (ii) the
Secretary or any Assistant Secretary of the Company evidences
such adoption by filing with the minutes of this meeting,
copies of such resolutions, which shall thereupon be deemed to
be adopted by this Board and incorporated into the minutes as
part of this resolution with the same force and effect as if
presented to this meeting, and the officers of the Company are
authorized to take any and all further action which they may
deem necessary or advisable in order to maintain such
registration or listing in effect for as long as they may deem
to be in the best interest of the Company.
RESOLVED, that any Authorized Officer or Officers are
authorized and empowered to take all actions, and to execute
and deliver any and all documents, under the Company's seal,
if necessary, such agreements, guarantees, certificates,
obligations, instruments, notes, bonds, warrants, options,
offering documents, government filings and documents, in the
name and on behalf of this Company, as such Authorized Officer
or Officers shall deem necessary, desirable or appropriate to
effect or otherwise carry out the foregoing resolutions.
RESOLVED, that any Authorized Officer or Officers be, and each
of them hereby is, authorized and directed to take any and all
action for and on behalf of the Company that such Authorized
Officer or Officers may determine to be necessary, desirable
or appropriate to carry into effect the foregoing resolutions.
RESOLVED, the execution of the documents for the issues of
Securities by any of the Authorized Officers, as provided by
these resolutions shall constitute conclusive evidence of
approval on behalf of the Company of the final structures,
terms and conditions of such documents.
RESOLVED, that any one of the Authorized Officers is hereby
authorized to redelegate in writing the authority granted
under the foregoing resolutions to any officer or officers of
the Company or other designated persons and to provide that
the officers of the Company or other designated persons
different from or in addition to the officers of the Company
named in the foregoing resolutions shall be authorized to take
any of the actions contemplated by the foregoing resolutions.
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RESOLVED, that any and all actions heretofore or hereafter
taken by any officer or officers of the Company or other
designated persons within the terms of the foregoing
resolutions is hereby approved, ratified and confirmed as the
act of the Company.
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