EXECUTION COPY
LEVI ▇▇▇▇▇▇▇ & CO.
11 5/8% Senior Notes due 2008
_____________________________
U.S. DOLLAR INDENTURE
Dated as of January 18, 2001
_____________________________
CITIBANK, N.A.,
Trustee
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions 1
SECTION 1.02. Other Definitions 40
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act 41
SECTION 1.04. Rules of Construction 41
ARTICLE II
The Securities
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SECTION 2.01. Amount of Securities; Issuable in Series 42
SECTION 2.02. Form and Dating 44
SECTION 2.03. Execution and Authentication 44
SECTION 2.04. Registrar and Paying Agent 45
SECTION 2.05. Paying Agent to Hold Money in Trust 45
SECTION 2.06. Securityholder Lists 46
SECTION 2.07. Replacement Securities 46
SECTION 2.08. Outstanding Securities 46
SECTION 2.09. Temporary Securities 47
SECTION 2.10. Cancellation 47
SECTION 2.11. Defaulted Interest 47
SECTION 2.12. CUSIP Numbers 48
ARTICLE III
Redemption
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SECTION 3.01. Notices to Trustee 48
SECTION 3.02. Selection of Securities To Be Redeemed 48
SECTION 3.03. Notice of Redemption 49
SECTION 3.04. Effect of Notice of Redemption 49
SECTION 3.05. Deposit of Redemption Price 50
SECTION 3.06. Securities Redeemed in Part 50
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ARTICLE IV
Covenants
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SECTION 4.01 Covenant Suspension 50
SECTION 4.02. Payment of Securities 51
SECTION 4.03. SEC Reports 51
SECTION 4.04. Limitation on Debt 52
SECTION 4.05. Limitation on Restricted Payments 55
SECTION 4.06. Limitation on Liens 58
SECTION 4.07. Limitation on Asset Sales 58
SECTION 4.08. Limitation on Restrictions on
Distributions from Restricted
Subsidiaries 62
SECTION 4.09. Limitation on Transactions with
Affiliates 64
SECTION 4.10. Designation of Restricted and
Unrestricted Subsidiaries 65
SECTION 4.11. Limitation on Sale and Leaseback
Transactions 67
SECTION 4.12. Change of Control 67
SECTION 4.13. Further Instruments and Acts 69
ARTICLE V
Successor Company
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SECTION 5.01. When Company May Merge or Transfer
Assets 69
ARTICLE VI
Defaults and Remedies
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SECTION 6.01. Events of Default 71
SECTION 6.02. Acceleration 73
SECTION 6.03. Other Remedies 74
SECTION 6.04. Waiver of Past Defaults 74
SECTION 6.05. Control by Majority 74
SECTION 6.06. Limitation on Suits 75
SECTION 6.07. Rights of Holders to Receive Payment 75
SECTION 6.08. Collection Suit by Trustee 75
SECTION 6.09. Trustee May File Proofs of Claim 76
SECTION 6.10. Priorities 76
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SECTION 6.11. Undertaking for Costs 76
SECTION 6.12. Waiver of Stay or Extension Laws 77
ARTICLE VII
Trustee
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SECTION 7.01. Duties of Trustee 77
SECTION 7.02. Rights of Trustee 79
SECTION 7.03. Individual Rights of Trustee 80
SECTION 7.04. Trustee's Disclaimer 80
SECTION 7.05. Notice of Defaults 80
SECTION 7.06. Reports by Trustee to Holders 80
SECTION 7.07. Compensation and Indemnity 81
SECTION 7.08. Replacement of Trustee 81
SECTION 7.09. Successor Trustee by Merger 83
SECTION 7.10. Eligibility; Disqualification 83
SECTION 7.11. Preferential Collection of Claims
Against Company 83
ARTICLE VIII
Discharge of Indenture; Defeasance
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SECTION 8.01. Discharge of Liability on Securities;
Defeasance 84
SECTION 8.02. Conditions to Defeasance 85
SECTION 8.03. Application of Trust Money 86
SECTION 8.04. Repayment to Company 86
SECTION 8.05. Indemnity for Government Obligations 87
SECTION 8.06. Reinstatement 87
ARTICLE IX
Amendments
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SECTION 9.01. Without Consent of Holders 87
SECTION 9.02. With Consent of Holders 88
SECTION 9.03. Compliance with Trust Indenture Act 89
SECTION 9.04. Revocation and Effect of Consents and
Waivers 89
SECTION 9.05. Notation on or Exchange of Securities 90
SECTION 9.06. Trustee to Sign Amendments 90
SECTION 9.07. Payment for Consent 90
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ARTICLE X
Miscellaneous
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SECTION 10.01. Trust Indenture Act Controls 91
SECTION 10.02. Notices 91
SECTION 10.03. Communication by Holders with Other Holders 92
SECTION 10.04. Certificate and Opinion as to Conditions Precedent 92
SECTION 10.05. Statements Required in Certificate or Opinion 92
SECTION 10.06. When Securities Disregarded 93
SECTION 10.07. Rules by Trustee, Paying Agent and Registrar 93
SECTION 10.08. Legal Holidays 93
SECTION 10.09. Governing Law 93
SECTION 10.10. No Recourse Against Others 93
SECTION 10.11. Successors 94
SECTION 10.12. Multiple Originals 94
SECTION 10.13. Table of Contents; Headings 94
Appendix A - Provisions Relating to Initial Securities
and Exchange Securities
Exhibit 1 to Appendix A
- Form of Initial Security
Exhibit A - Form of Exchange Security
Exhibit B - Form of Transferee Letter of Representation
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310 (a) (1) 7.10
(a) (2) 7.10
(a) (3) N.A.
(a) (4) N.A.
(b) 7.08;
7.10
(c) N.A.
311 (a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.06
(b) N.A.
(c) N.A.
313 (a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) N.A.
(d) 7.06
314 (a) 4.02;
4.10;
N.A.
(b) N.A.
(c)(1) N.A.
(c)(2) N.A.
(c)(3) N.A.
(d) N.A.
(e) N.A.
(f) 4.10
315 (a) 7.01
(b) 7.05;
N.A.
(c) 7.01
(d) 7.01
(e) 6.11
316 (a)
(last
sentence) N.A.
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
317 (a)(1) 6.08
(a)(2) 6.09
(b) 2.05
318 (a) N.A.
N.A. Means Not Applicable.
__________________
Note: This Cross-Reference Table shall not, for any purposes, be deemed to be
part of this Indenture.
INDENTURE dated as of January 18, 2001,
between ▇▇▇▇ ▇▇▇▇▇▇▇ & CO., a Delaware
corporation (the "Company") and CITIBANK,
N.A., a national banking association duly
organized and existing under the laws of the
U.S.A., as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's U.S.
dollar denominated 11 5/8% Senior Notes due 2008, to be issued, from time to
time, in one or more series as in this Indenture provided (the "Initial
Securities") and, if and when issued pursuant to a registered or private
exchange for the Initial Securities, the Company's 11 5/8% Senior Notes due 2008
(the "Exchange Securities" and, together with the Initial Securities, the
"Securities"):
ARTICLE I
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions.
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"Additional Assets" means:
(a) any Property (other than cash, cash equivalents,
securities and inventory) to be owned by the Company or any Restricted
Subsidiary and used in a Related Business; or
(b) Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of that Capital Stock by the
Company or another Restricted Subsidiary from any Person other than the
Company or an Affiliate of the Company; provided, however, that, in the
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case of this clause (b), the Restricted Subsidiary is primarily engaged
in a Related Business.
"Affiliate" of any specified Person means:
(a) any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with that
specified Person, or
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(b) any other Person who is a director or officer of that
specified Person.
For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
that Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. For purposes of Section
4.09 and Section 4.07 and the definition of "Additional Assets" only,
"Affiliate" shall also mean any Beneficial Owner of shares representing 10% or
more of the total voting power of the Voting Stock (on a fully diluted basis) of
the Company or of rights or warrants to purchase that Voting Stock (whether or
not currently exercisable) and any Person who would be an Affiliate of any
Beneficial Owner pursuant to the first sentence hereof.
"Asset Sale" means any sale, lease, transfer, issuance or
other disposition (or series of related sales, leases, transfers, issuances or
dispositions) by the Company or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "disposition"), of
(a) any shares of Capital Stock of a Restricted Subsidiary
(other than directors' qualifying shares),
(b) all or substantially all the assets of any division or
line of business of the Company or any Restricted Subsidiary,
(c) in the case of any disposition by the Company or a
Restricted Subsidiary to any Person, any other assets of the Company or
any Restricted Subsidiary outside of the ordinary course of business of
the Company or such Restricted Subsidiary, or
(d) in the case of any disposition by the Company to a
Restricted Subsidiary of the Company, any other assets of the Company,
other than dispositions in the ordinary course of business of raw
materials to a Restricted Subsidiary to be used in the manufacture of
finished goods, of finished goods to a Restricted Subsidiary for resale
by the Restricted Subsidiary or its designee or of work in process to a
Restricted Subsidiary,
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other than, in the case of clause (a), (b), (c) or (d) above,
(1) any disposition by a Restricted Subsidiary to the Company
or by the Company or a Restricted Subsidiary to a Restricted
Subsidiary,
(2) any disposition that constitutes a Permitted Investment or
Restricted Payment permitted by Section 4.05,
(3) any disposition effected in compliance with the first
paragraph in Section 5.01,
(4) a sale of accounts receivables and related assets of the
type specified in the definition of "Qualified Receivables Transaction"
to a Receivables Entity,
(5) a transfer of accounts receivables and related assets of
the type specified in the definition of "Qualified Receivables
Transaction" (or a fractional undivided interest therein) by a
Receivables Entity in connection with a Qualified Receivables
Transaction, and
(6) a transfer of accounts receivable of the type specified in
the definition of "Credit Facility" that is permitted under clause (b)
of the second paragraph of Section 4.04.
Notwithstanding the foregoing, if at any time, the aggregate Fair
Market Value of assets disposed of by the Company to its Subsidiaries since the
Issue Date, other than (a) Permitted Investments comprised of cash or cash
equivalents, (b) dispositions pursuant to paragraphs (4), (5) and (6) above and
(c) dispositions by the Company to a Restricted Subsidiary of raw materials to
be used in the manufacture of finished goods, of finished goods and of work in
process, exceeds 10% of Consolidated Tangible Assets, all asset dispositions in
excess thereof shall be treated as Asset Sales subject to the restrictions set
forth in Section 4.07. For purposes of this paragraph, the aggregate Fair Market
Value of assets so transferred at any time shall be calculated by using the sum
of the Fair Market Value of each asset disposition as of the date of its
disposition.
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"Attributable Debt" in respect of a Sale and Leaseback Trans-
action means, at any date of determination,
(a) if the Sale and Leaseback Transaction is a Capital Lease
Obligation, the amount of Debt represented thereby according to the
definition of "Capital Lease Obligation", and
(b) in all other instances, the greater of:
(1) the Fair Market Value of the Property subject to
the Sale and Leaseback Transaction, and
(2) the present value (discounted at the interest
rate borne by the Securities, compounded annually) of the
total obligations of the lessee for rental payments during the
remaining term of the lease included in the Sale and Leaseback
Transaction (including any period for which the lease has been
extended).
"Average Life" means, as of any date of determination, with
respect to any Debt or Preferred Stock, the quotient obtained by dividing:
(a) the sum of the product of the numbers of years (rounded to
the nearest one-twelfth of one year) from the date of determination to
the dates of each successive scheduled principal payment of that Debt
or redemption or similar payment with respect to that Preferred Stock
multiplied by the amount of the payment by
(b) the sum of all payments of this kind.
"Beneficial Owner" means a beneficial owner as defined in Rule
13d-3 under the Exchange Act, except that:
(a) a Person will be deemed to be the Beneficial Owner of all
shares that the Person has the right to acquire, whether that right is
exercisable immediately or only after the passage of time,
(b) for purposes of clause (a) of the definition of "Change of
Control", Permitted Holders will be deemed to be the Beneficial Owners
of any Voting Stock of a corporation or other legal entity held by any
other corporation or other legal entity so long as the Permitted
Holders Beneficially Own, directly or indirectly, in the aggregate a
majority of the total
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voting power of the Voting Stock of that corporation or other legal
entity, and
(c) for purposes of clause (b) of the definition of "Change of
Control", any "person" or "group" (as those terms are defined in
Sections 13(d) and 14(d) of the Exchange Act or any successor
provisions to either of the foregoing), including any group acting for
the purpose of acquiring, holding, voting or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act, other
than any one or more of the Permitted Holders, shall be deemed to be
the Beneficial Owners of any Voting Stock of a corporation or other
legal entity held by any other corporation or legal entity ("the parent
corporation"), so long as that person or group Beneficially Owns,
directly or indirectly, in the aggregate a majority of the total voting
power of the Voting Stock of that parent corporation.
The term "Beneficially Own" shall have a corresponding meaning.
"Board of Directors" means the Board of Directors of the
Company (or, in the case of Section 4.09(2), the applicable Restricted
Subsidiary) or any committee thereof duly authorized to act on behalf of such
Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day" means each day that is not a Legal Holiday.
"Capital Lease Obligations" means any obligation under a lease
that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of Debt represented by that obligation
shall be the capitalized amount of the obligations determined in accordance with
GAAP; and the Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under that lease prior to the first date upon which
that lease may be terminated by the lessee without payment of a penalty. For
purposes of Section 4.06, a Capital Lease Obligation shall be deemed secured by
a Lien on the Property being leased.
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"Capital Stock" means, with respect to any Person, any shares
or other equivalents (however designated) of any class of corporate stock or
partnership interests or any other participations, rights, warrants, options or
other interests in the nature of an equity interest in that Person, including
Preferred Stock, but excluding any debt security convertible or exchangeable
into that equity interest.
"Capital Stock Sale Proceeds" means the aggregate cash
proceeds received by the Company from the issuance or sale (other than to a
Subsidiary of the Company or an employee stock ownership plan or trust
established by the Company or the Subsidiary for the benefit of their employees)
by the Company of its Capital Stock (other than Disqualified Stock) after the
Issue Date, net of attorneys' fees, accountants' fees, initial purchasers' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees actually incurred in connection with the issuance or sale and net of
taxes paid or payable as a result thereof.
"Change of Control" means the occurrence of any of the
following events:
(a) prior to the first Public Equity Offering that results in
a Public Market, the Permitted Holders cease to be the Beneficial
Owners, directly or indirectly, of a majority of the total voting power
of the Voting Stock of the Company, whether as a result of the issuance
of securities of the Company, any merger, consolidation, liquidation or
dissolution of the Company, any direct or indirect transfer of
securities by the Permitted Holders or otherwise; or
(b) on or after the first Public Equity Offering that results
in a Public Market, if any "person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act or any successor
provisions to either of the foregoing), including any group acting for
the purpose of acquiring, holding, voting or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act, other
than any one or more of the Permitted Holders, becomes the Beneficial
Owner, directly or indirectly, of 35% or more of the total voting power
of the Voting Stock of the Company; provided, however, that the
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Permitted Holders are the Beneficial Owners, directly or indirectly, in
the aggregate of a lesser percentage of the total voting power of the
Voting Stock of the Company than that other person or group; and
provided further, that the
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provisions of this clause (b) will not apply to Voting Trustees serving
in that capacity under the Voting Trust Arrangement; or
(c) the sale, transfer, assignment, lease, conveyance or other
disposition, directly or indirectly, of all or substantially all the
assets of the Company and the Restricted Subsidiaries, considered as a
whole (other than a disposition of assets as an entirety or virtually
as an entirety to a Wholly Owned Restricted Subsidiary or one or more
Permitted Holders) shall have occurred, or the Company merges,
consolidates or amalgamates with or into any other Person (other than
one or more Permitted Holders) or any other Person (other than one or
more Permitted Holders) merges, consolidates or amalgamates with or
into the Company, in any event pursuant to a transaction in which the
outstanding Voting Stock of the Company is reclassified into or
exchanged for cash, securities or other Property, other than
transaction where:
(1) the outstanding Voting Stock of the Company is
reclassified into or exchanged for other Voting Stock of the
Company or for Voting Stock of the surviving corporation or
transferee, and
(2) the Holders of the Voting Stock of the Company
immediately prior to the transaction own, directly or
indirectly, not less than a majority of the Voting Stock of
the Company or the surviving corporation or transferee
immediately after the transaction and in substantially the
same proportion as before the transaction; or
(d) during any period of two consecutive years, individuals
who at the beginning of that period constituted the Board of Directors
(together with any new directors whose election or appointment by such
Board or whose nomination for election by the shareholders of the
Company was approved by a vote of not less than three-fourths of the
directors then still in office who were either directors at the
beginning of that period or whose election or nomination for election
was previously so approved or by a vote of the Voting Trustees pursuant
to the terms of the Voting Trust Arrangement) cease for any reason to
constitute a majority of the Board of Directors then in office; or
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(e) the shareholders of the Company shall have approved any
plan of liquidation or dissolution of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodity Price Protection Agreement" means, in respect of a
Person, any forward contract, commodity swap agreement, commodity option
agreement or other similar agreement or arrangement designed to protect that
Person against fluctuations in commodity prices.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to the applicable provisions hereof and,
thereafter, means the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the indenture securities.
"Consolidated Current Liabilities" means, as of any date of
determination, the aggregate amount of liabilities of the Company and its
consolidated Restricted Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated), after eliminating:
(a) all intercompany items between the Company and any
Restricted Subsidiary or between Restricted Subsidiaries, and
(b) all current maturities of long-term Debt.
"Consolidated Fixed Charges" means, for any period, the total
interest expense (net of interest income) of the Company and its consolidated
Restricted Subsidiaries, plus, to the extent not included in such total interest
expense, and to the extent Incurred by the Company or its Restricted
Subsidiaries,
(a) interest expense attributable to leases constituting part
of a Sale and Leaseback Transaction and to Capital Lease Obligations,
(b) amortization of debt discount and debt issuance cost,
including commitment fees,
(c) capitalized interest,
(d) non-cash interest expense,
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(e) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing,
(f) net costs associated with Interest Rate Agreements
(including amortization of fees),
(g) Disqualified Stock Dividends,
(h) Preferred Stock Dividends,
(i) interest Incurred in connection with Investments in
discontinued operations,
(j) interest accruing on any Debt of any other Person to the
extent that Debt is Guaranteed by the Company or any Restricted
Subsidiary, and
(k) the cash contributions to any employee stock ownership
plan or similar trust to the extent those contributions are used by the
plan or trust to pay interest or fees to any Person (other than the
Company) in connection with Debt Incurred by the plan or trust.
Notwithstanding anything to the contrary contained herein, commissions,
discounts, yield and other fees and charges Incurred in connection with any
transaction (including, without limitation, any Qualified Receivables
Transaction) pursuant to which the Company or any Subsidiary of the Company may
sell, convey or otherwise transfer or grant a security interest in any accounts
receivable or related assets of the type specified in the definition of
"Qualified Receivables Transaction" shall be included in Consolidated Fixed
Charges.
"Consolidated Fixed Charges Coverage Ratio" means, as of any date of
determination, the ratio of:
(a) the aggregate amount of EBITDA for the most recent four
consecutive fiscal quarters ending at least 45 days prior to such
determination date to
(b) Consolidated Fixed Charges for those four fiscal quarters;
10
provided, however, that:
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(1) if
(A) since the beginning of that period the Company
or any Restricted Subsidiary has Incurred any Debt
that remains outstanding or Repaid any Debt, or
(B) the transaction giving rise to the need to
calculate the Consolidated Fixed Charges Coverage
Ratio involves an Incurrence or Repayment of Debt,
Consolidated Fixed Charges for that period shall be calculated after
giving effect on a pro forma basis to that Incurrence or Repayment as
if the Debt was Incurred or Repaid on the first day of that period,
provided that, in the event of any Repayment of Debt, EBITDA for that
period shall be calculated as if the Company or such Restricted
Subsidiary had not earned any interest income actually earned during
such period in respect of the funds used to Repay such Debt, and
(2) if
(A) since the beginning of that period the Company
or any Restricted Subsidiary shall have made any
Asset Sale or an Investment (by merger or
otherwise) in any Restricted Subsidiary (or any
Person which becomes a Restricted Subsidiary) or
an acquisition of Property which constitutes all
or substantially all of an operating unit of a
business,
(B) the transaction giving rise to the need to
calculate the Consolidated Fixed Charges Coverage
Ratio involves an Asset Sale, Investment or
acquisition, or
(C) since the beginning of that period any Person
(that subsequently became a Restricted Subsidiary
or was merged with or into the Company or any
Restricted Subsidiary since the beginning of that
period) shall have made such an Asset Sale,
Investment or acquisition,
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EBITDA for that period shall be calculated after giving pro forma effect to the
Asset Sale, Investment or acquisition as if the Asset Sale, Investment or
acquisition occurred on the first day of that period.
If any Debt bears a floating rate of interest and is being given pro
forma effect, the interest expense on that Debt shall be calculated as if the
base interest rate in effect for the floating rate of interest on the date of
determination had been the applicable base interest rate for the entire period
(taking into account any Interest Rate Agreement applicable to that Debt if the
applicable Interest Rate Agreement has a remaining term in excess of 12 months).
In the event the Capital Stock of any Restricted Subsidiary is sold during the
period, the Company shall be deemed, for purposes of clause (1) above, to have
Repaid during that period the Debt of that Restricted Subsidiary to the extent
the Company and its continuing Restricted Subsidiaries are no longer liable for
that Debt after the sale.
"Consolidated Net Income" means, for any period, the net
income (loss) of the Company and its consolidated Subsidiaries; provided,
--------
however, that there shall not be included in such Consolidated Net Income:
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(a) any net income (loss) of any Person (other than the
Company) if that Person is not a Restricted Subsidiary, except that:
(1) subject to the exclusion contained in clause (d)
below, the Company's equity in the net income of any such
Person for that period shall be included in such Consolidated
Net Income up to the aggregate amount of cash distributed by
that Person during that period to the Company or a Restricted
Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution to a Restricted
Subsidiary, to the limitations contained in clause (c) below),
and
(2) the Company's equity in a net loss of that Person
other than an Unrestricted Subsidiary for the specified period
shall be included in determining such Consolidated Net Income,
(b) for purposes of Section 4.05 only, any net income (loss)
of any Person acquired by the Company or any of its consolidated
Subsidiaries in a pooling of interests transaction for any period prior
to the date of the acquisition,
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(c) any net income (loss) of any Restricted Subsidiary if the
Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions,
directly or indirectly, to the Company, except that:
(1) subject to the exclusion contained in clause (d)
below, the Company's equity in the net income of the
Restricted Subsidiary for the period shall be included in
Consolidated Net Income up to the aggregate amount that
would have been permitted at the date of determination
to be dividended to the Company or another Restricted
Subsidiary by that Restricted Subsidiary without prior
approval by a third party (that has not been obtained),
pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and
government regulations applicable to that Restricted
Subsidiary or its shareholders, during that period as a
dividend or other distribution (subject, in the case of a
dividend or other distribution to another Restricted
Subsidiary, to the limitation contained in this clause), and
(2) the Company's equity in a net loss of the
Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income,
(d) any gain (but not loss) realized upon the sale or other
disposition of any Property of the Company or any of its consolidated
Subsidiaries (including pursuant to any Sale and Leaseback Transaction)
that is not sold or otherwise disposed of in the ordinary course of
business,
(e) any extraordinary gain or loss,
(f) the cumulative effect of a change in accounting
principles,
(g) any unrealized gains or losses of the Company or its
consolidated Subsidiaries on any Hedging Obligations, and
(h) any non-cash compensation expense realized for grants of
performance shares, stock options or other rights to officers,
directors and employees of the Company or any Restricted Subsidiary,
provided that those shares, options or other rights can be redeemed
13
at the option of the holder only for Capital Stock of the Company
(other than Disqualified Stock).
Notwithstanding the foregoing, for purposes of Section 4.05 only, there shall be
excluded from Consolidated Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries to the
Company or a Restricted Subsidiary to the extent the dividends, repayments or
transfers increase the amount of Restricted Payments permitted under that
covenant pursuant to clause (c)(4) thereof.
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Company and its consolidated Restricted Subsidiaries as the
total assets (less accumulated depreciation, amortization, allowances for
doubtful receivables, other applicable reserves and other properly deductible
items) of the Company and its Restricted Subsidiaries, after giving effect to
purchase accounting and after deducting therefrom Consolidated Current
Liabilities and, to the extent otherwise included, the amounts of (without
duplication):
(a) the excess of cost over fair market value of assets or
businesses acquired;
(b) any revaluation or other write-up in book value of assets
subsequent to the last day of the fiscal quarter of the Company
immediately preceding the Issue Date as a result of a change in the
method of valuation in accordance with GAAP;
(c) unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses, organization or developmental
expenses and other intangible items;
(d) minority interests in consolidated Subsidiaries held by
Persons other than the Company or any Restricted Subsidiary;
(e) treasury stock;
(f) cash or securities set aside and held in a sinking or
other analogous fund established for the purpose of redemption or other
retirement of Capital Stock to the extent such obligation is not
reflected in Consolidated Current Liabilities; and
14
(g) Investments in and assets of Unrestricted Subsidiaries.
"Consolidated Tangible Assets" means, as of any date of determination,
the sum of the amounts of Consolidated Net Tangible Assets and Consolidated
Current Liabilities as of such date.
"Credit Facilities" means, with respect to the Company or any
Restricted Subsidiary, one or more debt or commercial paper facilities
(including related Guarantees) with banks, investment banks, insurance
companies, mutual funds or other institutional lenders (including our Existing
Bank Credit Facilities), providing for revolving credit loans, term loans,
receivables or inventory financing (including through the sale of receivables or
inventory to institutional lenders or to special purpose, bankruptcy remote
entities formed to borrow from institutional lenders against those receivables
or inventory) or trade or standby letters of credit, in each case together with
any Refinancings thereof by a lender or syndicate of lenders; provided that, in
the case of a transaction in which any accounts receivable are sold, conveyed or
otherwise transferred by the Company or any of its subsidiaries to another
Person other than a Receivables Entity, then that transaction must satisfy the
following three conditions:
(a) if the transaction involves a transfer of accounts
receivable with Fair Market Value equal to or greater than $25.0
million, the Board of Directors shall have determined in good faith
that the transaction is economically fair and reasonable to the Company
or the Subsidiary that sold, conveyed or transferred the accounts
receivable,
(b) the sale, conveyance or transfer of accounts receivable by
the Company or the Subsidiary is made at Fair Market Value and
(c) the financing terms, covenants, termination events and
other provisions of the transaction shall be market terms (as
determined in good faith by the Board of Directors if Board approval is
required under clause (a)).
"Currency Exchange Protection Agreement" means, in respect of
a Person, any foreign exchange contract, currency swap agreement, currency
option or other similar agreement or arrangement designed to protect that Person
against fluctuations in currency exchange rates.
15
"Debt" means, with respect to any Person on any date of
determination (without duplication):
(a) the principal of and premium (if any) in respect of:
(1) debt of the Person for money borrowed, and
(2) debt evidenced by notes, debentures, bonds or
other similar instruments for the payment of which the Person
is responsible or liable;
(b) all Capital Lease Obligations of the Person and all
Attributable Debt in respect of Sale and Leaseback Transactions entered
into by the Person;
(c) all obligations of the Person issued or assumed as the
deferred purchase price of Property, all conditional sale obligations
of the Person and all obligations of the Person under any title
retention agreement (but excluding trade accounts payable arising in
the ordinary course of business);
(d) all obligations of the Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing obligations (other than obligations described in (a) through
(c) above) entered into in the ordinary course of business of the
Person to the extent those letters of credit are not drawn upon or, if
and to the extent drawn upon, the drawing is reimbursed no later than
the third Business Day following receipt by the Person of a demand for
reimbursement following payment on the letter of credit);
(e) the amount of all obligations of the Person with respect
to the Repayment of any Disqualified Stock or, with respect to any
Subsidiary of the Person, any Preferred Stock (but excluding, in each
case, any accrued dividends);
(f) all obligations of the type referred to in clauses (a)
through (e) of other Persons and all dividends of other Persons for the
payment of which, in either case, the Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee;
16
(g) all obligations of the type referred to in clauses (a)
through (f) of other Persons secured by any Lien on any Property of the
Person (whether or not such obligation is assumed by the Person), the
amount of such obligation being deemed to be the lesser of the value of
that Property or the amount of the obligation so secured; and
(h) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
The amount of Debt of any Person at any date shall be the outstanding balance at
that date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at that date. The amount of Debt represented by a
Hedging Obligation shall be equal to:
(1) zero if the Hedging Obligation has been Incurred
pursuant to clause (e), (f) or (g) of the second paragraph of
Section 4.04, or
(2) if the Hedging Obligation is not Incurred pursuant to
clauses (e), (f) or (g) of the second paragraph of Section
4.04, then 105% of the aggregate net amount, if any, that
would then be payable by the Company and any Restricted
Subsidiary on a per counter-party basis pursuant to Section
6(e) of the ISDA Master Agreement (Multicurrency-Cross Border)
in the form published by the International Swaps and
Derivatives Association in 1992 (the "ISDA Form"), as if the
date of determination were a date that constitutes or is
substantially equivalent to an Early Termination Date, as
defined in the ISDA Form, with respect to all transactions
governed by the ISDA Form, plus the equivalent amount under
the terms of any other Hedging Obligations that are not
Incurred pursuant to clauses (e), (f) or (g) of the second
paragraph of Section 4.04, each such amount to be estimated in
good faith by the Company.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock that by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable, in either case at the option of
the holder thereof) or otherwise:
17
(a) matures or is mandatorily redeemable pursuant to a sinking
fund obligation or otherwise,
(b) is or may become redeemable or repurchaseable at the
option of the holder thereof, in whole or in part, or
(c) is convertible or exchangeable at the option of the holder
thereof for Debt or Disqualified Stock, on or prior to, in the case of
clause (a), (b) or (c), the first anniversary of the Stated Maturity of
the Securities.
"Disqualified Stock Dividends" means all dividends with
respect to Disqualified Stock of the Company held by Persons other than a Wholly
Owned Restricted Subsidiary. The amount of any dividend of this kind shall be
equal to the quotient of the dividend divided by the difference between one and
the maximum statutory federal income tax rate (expressed as a decimal number
between 1 and 0) then applicable to the Company.
"EBITDA" means, for any period, an amount equal to, for the
Company and its consolidated Restricted Subsidiaries:
(a) the sum of Consolidated Net Income for that period, plus
the following to the extent reducing Consolidated Net Income for that
period:
(1) the provision for taxes based on income or profits or
utilized in computing net loss,
(2) Consolidated Fixed Charges,
(3) depreciation,
(4) amortization of intangibles,
(5) any other non-cash items (other than any non-cash
item to the extent that it represents an accrual of or reserve
for cash expenditures in any future period), and
(6) any one-time, non-recurring expenses relating to, or
arising from, any closures of manufacturing facilities on or
after the Issue Date, in each case incurred within 12 months
after such closure, minus
18
(b) all non-cash items increasing Consolidated Net Income for
that period (other than any such non-cash item to the extent that it
will result in the receipt of cash payments in any future period).
Notwithstanding the foregoing clause (a), the provision for taxes and the
depreciation, amortization and non-cash items of a Restricted Subsidiary shall
be added to Consolidated Net Income to compute EBITDA only to the extent (and in
the same proportion) that the net income of that Restricted Subsidiary was
included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Company by that Restricted Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to that Restricted Subsidiary or its shareholders.
"Equipment Financing Transaction" means any arrangement
(together with any Refinancings thereof) with any Person pursuant to which the
Company or any Restricted Subsidiary Incurs Debt secured by a Lien on equipment
or equipment related property of the Company or any Restricted Subsidiary.
"Euro Notes" means the Company's 11 5/8% Senior Notes due 2008
denominated in euros and issued pursuant to an indenture dated the date hereof
between the Company and Citibank, N.A. as trustee.
"Event of Default" has the meaning set forth in Section 6.01
"Exchange Act" means the Securities Exchange Act of 1934.
"Existing Bank Credit Facilities" means:
(a) the Bridge Credit Agreement, dated as of January 31, 2000,
among the Company, Bank of America, N.A. as administrative agent,
collateral agent and lender, The Bank of Nova Scotia, Citicorp U.S.A.
Incorporated, ▇▇▇▇▇▇ Guaranty Trust Company of New York and Bank One,
N.A., as amended as of July 31, 2000 and September 29, 2000,
(b) the Amended and Restated 1999 180 Day Credit Agreement,
dated as of January 31, 2000, among the Company, Bank of America, N.A.
as administrative agent, collateral agent and lender, The Bank of Nova
Scotia,
19
Citicorp U.S.A. Incorporated and ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as amended as of July 31, 2000, September 29, 2000 and October
13, 2000,
(c) the Amended and Restated 1997 364 Day Credit Agreement,
dated as of January 31, 2000, among the Company, Bank of America, N.A.
as administrative agent, collateral agent and lender, The Bank of Nova
Scotia, Citicorp U.S.A. Incorporated, ▇▇▇▇▇▇ Guaranty Trust Company of
New York, Commerzbank AG, Credit Lyonnais, Bank One, N.A., The Sumitomo
Bank, Ltd., ABN AMRO Bank N.V., Banca Commerciale Italiana, Banque
Nationale de Paris, Criplo-Cassa di Risparmio delle Provincie Lombarde
S.p.A., Societe Generale, Mellon Bank National Association, KBC Bank
N.V., UniCredito Italiano S.p.A., Deutsche Bank Aktiengesellschaft,
Wachovia Bank N.A., Bankers Trust Company and First Hawaiian Bank, as
amended as of July 31, 2000, September 29, 2000 and October 13, 2000,
and
(d) the 1997 Second Amended and Restated Credit Agreement,
dated as of January 31, 2000, among the Company, Bank of America, N.A.
as administrative agent, collateral agent and lender, The Bank of Nova
Scotia, Citicorp U.S.A. Incorporated, ▇▇▇▇▇▇ Guaranty Trust Company of
New York, Commerzbank AG, Credit Lyonnais, The Chase Manhattan Bank,
Bank One, N.A., The Sumitomo Bank, Ltd., ABN AMRO Bank N.V., Banca
Commerciale Italiana, Banque Nationale de Paris, Cariplo-Cassa di
Risparmio delle Provincie Lombarde S.p.A., CIBC Inc., The Royal Bank of
Canada, The Sanwa Bank, Limited, The Toronto-Dominion Bank, KBC Bank
N.V., PNC Bank N.A., Societe Generale, BankBoston N.A., The Industrial
Bank of Japan, Limited, Mellon Bank National Association, The Tokai
Bank Limited, The Bank of Tokyo-Mitsubishi Limited, Union Bank of
California, N.A. Banca Monte dei Paschi di Siena S.p.A., UniCredito
Italiano S.p.A., Deutsche Bank Aktiengesellschaft, San Paolo IMI
S.p.A., Cooperative Centrale Raiffeisent--Boerenleenbank B.A., UBS AG,
Wachovia Bank N.A., Bankers Trust Company and First Hawaiian Bank, as
amended as of July 31, 2000, September 29, 2000 and October 13, 2000.
"Existing Policies" means (1) the Company's estate tax
repurchase policy under which the Company repurchases a portion of a deceased
stockholder's shares to generate funds for payment of estate taxes and (2) the
Company's valuation policy under which the Company obtains an annual valuation
of the Company's Voting Trust Certificates, as both policies exist at the Issue
Date or as they may exist from time to time, provided that if either of these
policies is
20
materially amended after the Issue Date in a manner less favorable to the
Company than the policy as existing on the Issue Date, then that amended policy
shall be deemed not to be an Existing Policy.
"Fair Market Value" means, with respect to any Property, the
price that could be negotiated in an arm's length free market transaction, for
cash, between a willing seller and a willing buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. For purposes of
Section 4.05 and Section 4.07 and the definitions of "Qualified Receivables
Transaction" and "Credit Facilities", Fair Market Value shall be determined,
except as otherwise provided,
(a) if the Property has a Fair Market Value equal to or less
than $25.0 million, by any Officer of the Company, or
(b) if the Property has a Fair Market Value in excess of $25.0
million, by a majority of the Board of Directors and evidenced by a
Board Resolution, dated within 12 months of the relevant transaction,
delivered to the Trustee.
"Foreign Restricted Subsidiary" means any Restricted
Subsidiary which is not organized under the laws of the United States of America
or any State thereof or the District of Columbia.
"GAAP" means United States generally accepted accounting
principles as in effect from time to time, including those set forth:
(a) in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants,
(b) in the statements and pronouncements of the Financial
Accounting Standards Board,
(c) in other statements by another entity as approved by a
significant segment of the accounting profession, and
(d) the rules and regulations of the Commission governing the
inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and pronouncements
21
in staff accounting bulletins and similar written statements from the
accounting staff of the Commission.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Debt of any other Person and
any obligation, direct or indirect, contingent or otherwise, of that Person:
(a) to purchase or pay (or advance or supply funds for the
purchase or payment of) the Debt of such other Person (whether arising
by virtue of partnership arrangements, or by agreements to keep-well,
to purchase assets, goods, securities or services, to take-or-pay or to
maintain financial statement conditions or otherwise), or
(b) entered into for the purpose of assuring in any other
manner the obligee against loss in respect thereof (in whole or in
part);
provided, however, that the term "Guarantee" shall not include:
-------- -------
(1) endorsements for collection or deposit in the ordinary
course of business, or
(2) a contractual commitment by one Person to invest in
another Person for so long as the Investment is reasonably expected to
constitute a Permitted Investment under clause (a), (b) or (i) of the
definition of "Permitted Investment".
The term "Guarantee" used as a verb has a corresponding meaning. The term
"Guarantor" shall mean any Person Guaranteeing any obligation.
"Hedging Obligation" of any Person means any obligation of
that Person pursuant to any Interest Rate Agreement, Currency Exchange
Protection Agreement, Commodity Price Protection Agreement or any other similar
agreement or arrangement.
"Holder" or "Securityholder" means the Person in whose name
the Security is registered on the Security register described in Section 2.04.
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by merger, conversion, exchange or
otherwise), extend, assume, Guarantee or become liable in respect of that Debt
or other obligation or the recording, as required pursuant to GAAP or
22
otherwise, of any Debt or obligation on the balance sheet of that Person (and
"Incurrence" and "Incurred" shall have meanings correlative to the foregoing);
provided, however, that a change in GAAP that results in an obligation of that
-------- -------
Person that exists at such time, and is not theretofore classified as Debt,
becoming Debt shall not be deemed an Incurrence of that Debt; provided further,
----------------
however, that any Debt or other obligations of a Person existing at the time the
-------
Person becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by that Subsidiary at the time it
becomes a Subsidiary; and provided further, however, that solely for purposes of
---------------- -------
determining compliance with Section 4.04, amortization of debt discount or
premium shall not be deemed to be the Incurrence of Debt, provided that in the
case of Debt sold at a discount or at a premium, the amount of the Debt Incurred
shall at all times be the aggregate principal amount at Stated Maturity.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Independent Financial Advisor" means an investment banking
firm of national standing or any third party appraiser of national standing,
provided that the firm or appraiser is not an Affiliate of the Company.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate option agreement or other similar agreement
or arrangement designed to protect against fluctuations in interest rates.
"Investment" by any Person means any direct or indirect loan
(other than advances to customers and suppliers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of that
Person), advance or other extension of credit or capital contribution (by means
of transfers of cash or other Property to others or payments for Property or
services for the account or use of others, or otherwise) to, or Incurrence of a
Guarantee of any obligation of, or purchase or acquisition of Capital Stock,
bonds, notes, debentures or other securities or evidence of Debt issued by, any
other Person. For purposes of Section 4.05, Section 4.10 and the definition of
"Restricted Payment", Investment shall include the portion (proportionate to the
Company's equity interest in the Subsidiary) of the Fair Market Value of the net
assets of any Subsidiary of the Company at the time that the Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that upon a
-------- -------
redesignation of that Subsidiary as a Restricted Subsidiary, the Company shall
be
23
deemed to continue to have a permanent Investment in an Unrestricted Subsidiary
of an amount (if positive) equal to:
(a) the Company's Investment in that Subsidiary at the time of
such redesignation, less
(b) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the Fair Market Value of the net assets
of that Subsidiary at the time of such redesignation. In determining
the amount of any Investment made by transfer of any Property other
than cash, the Property shall be valued at its Fair Market Value at the
time of the Investment.
"Investment Grade Rating" means a rating equal to or higher
than Baa3 (or the equivalent) by Moody's and BBB- (or the equivalent) by S&P.
"Issue Date" means the first date on which the Securities are
initially issued.
"Issue Date Euro Notes" means Euro Notes issued on the first
date on which the Euro Notes are initially issued.
"Lien" means, with respect to any Property of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to that Property (including any Capital
Lease Obligation, conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing or any Sale and
Leaseback Transaction).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor to the rating agency business thereof.
"Net Available Cash" from any Asset Sale means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Debt or other obligations
relating to the Property that is the subject of that Asset Sale or received in
any other non-cash form), in each case net of:
24
(a) all legal, title and recording tax expenses, commissions
and other fees (including, without limitation, brokers' or investment
bankers' commissions or fees) and expenses incurred, and all Federal,
state, provincial, foreign and local taxes required to be accrued as a
liability under GAAP, as a consequence of the Asset Sale,
(b) all payments made on any Debt that is secured by any
Property subject to the Asset Sale, in accordance with the terms of any
Lien upon or other security agreement of any kind with respect to that
Property, or which must by its terms, or in order to obtain a necessary
consent to the Asset Sale, or by applicable law, be repaid out of the
proceeds from the Asset Sale,
(c) all distributions and other payments required to be made
to minority interest holders in Subsidiaries or joint ventures as a
result of the Asset Sale, and
(d) the deduction of appropriate amounts provided by the
seller as a reserve, in accordance with GAAP, against any liabilities
associated with the Property disposed in the Asset Sale and retained by
the Company or any Restricted Subsidiary after the Asset Sale.
"Officer" means the Chief Executive Officer, the President,
the Chief Financial Officer, the Treasurer or the Assistant Treasurer of the
Company.
"Officers' Certificate" means a certificate signed by two
Officers of the Company, at least one of whom shall be the principal executive
officer or principal financial officer of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Permitted Holders" means the holders of Voting Stock as of
the Issue Date, together with any Voting Trustee and any Person who is a
"Permitted Transferee" of the holders, as that term is defined in the
Stockholders Agreement dated as of April 15, 1996 between the Company and the
stockholders of the Company party thereto as that Stockholders Agreement was in
effect on the Issue Date, except that transferees pursuant to Section 2.2(a)(x)
of that Stockholders Agreement shall not be deemed to be Permitted Transferees
for purposes of the Indenture.
25
"Permitted Investment" means any Investment by the Company or
a Restricted Subsidiary in:
(a) any Restricted Subsidiary or any Person that will, upon
the making of such Investment, become a Restricted Subsidiary, provided
that the primary business of the Restricted Subsidiary is a Related
Business;
(b) any Person if as a result of the Investment that Person is
merged or consolidated with or into, or transfers or conveys all or
substantially all its Property to, the Company or a Restricted
Subsidiary, provided that the Person's primary business is a Related
Business;
(c) Temporary Cash Investments;
(d) receivables owing to the Company or a Restricted
Subsidiary, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
provided, however, that those trade terms may include such
-------- -------
concessionary trade terms as the Company or the Restricted Subsidiary
deems reasonable under the circumstances;
(e) payroll, travel and similar advances to cover matters that
are expected at the time of those advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary
course of business;
(f) loans and advances to employees made in the ordinary
course of business consistent with past practices of the Company or the
applicable Restricted Subsidiary, as the case may be, provided that
those loans and advances do not exceed $5.0 million at any one time
outstanding;
(g) stock, obligations or other securities received in
settlement of debts created in the ordinary course of business and
owing to the Company or a Restricted Subsidiary or in satisfaction of
judgments;
(h) any Person to the extent the Investment represents the
non-cash portion of the consideration received in connection with an
Asset Sale consummated in compliance with Section 4.07;
26
(i) a Receivables Entity or any Investment by a Receivables
Entity in any other Person in connection with a Qualified Receivables
Transaction, including Investments of funds held in accounts permitted
or required by the arrangements governing that Qualified Receivables
Transaction or any related Indebtedness; provided that any Investment
in a Receivables Entity is in the form of a Purchase Money Note,
contribution of additional receivables or an equity interest;
(j) customers or suppliers of the Company or any of its
subsidiaries in the form of extensions of credit or transfers of
property, to the extent otherwise constituting an Investment, and in
the ordinary course of business and any Investments received in the
ordinary course of business in satisfaction or partial satisfaction
thereof;
(k) any Person if the Investments are outstanding on the Issue
Date and not otherwise described in clauses (a) through (j) above; and
(l) any Person made for Fair Market Value that do not exceed
$100.0 million outstanding at any one time in the aggregate.
"Permitted Liens" means:
(a) Liens (including, without limitation and to the extent
constituting a Lien, negative pledges) to secure Debt permitted to be
Incurred under clause (b) of the second paragraph of Section 4.04,
regardless of whether the Company and the Restricted Subsidiaries are
actually subject to the covenant contained in Section 4.04 at the time
the Lien is Incurred;
(b) Liens (including, without limitation and to the extent
constituting a Lien, negative pledges) to secure Debt permitted to be
Incurred under clause (h) of the second paragraph of Section 4.04,
regardless of whether the Company and the Restricted Subsidiaries are
actually subject to the covenant contained in Section 4.04 at the time
the Lien is Incurred, provided that any Lien of this kind may not
extend to any Property of the Company or any Restricted Subsidiary,
other than the Property acquired, constructed or leased with the
proceeds of that Debt and any improvements or accessions to that
Property;
27
(c) Liens for taxes, assessments or governmental charges or
levies on the Property of the Company or any Restricted Subsidiary if
the same shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by
appropriate proceedings promptly instituted and diligently concluded,
provided that any reserve or other appropriate provision that shall be
required in conformity with GAAP shall have been made therefor;
(▇) ▇▇▇▇▇ imposed by law, such as carriers', warehousemen's
and mechanics' Liens and other similar Liens, on the Property of the
Company or any Restricted Subsidiary arising in the ordinary course of
business and securing payment of obligations that are not more than 60
days past due or are being contested in good faith and by appropriate
proceedings;
(e) Liens on the Property of the Company or any Restricted
Subsidiary Incurred in the ordinary course of business to secure
performance of obligations with respect to statutory or regulatory
requirements, performance or return-of-money bonds, surety bonds or
other obligations of a like nature and Incurred in a manner consistent
with industry practice, including banker's liens and rights of set-off,
in each case which are not Incurred in connection with the borrowing of
money, the obtaining of advances or credit or the payment of the
deferred purchase price of Property and which do not in the aggregate
impair in any material respect the use of Property in the operation of
the business of the Company and the Restricted Subsidiaries taken as a
whole;
(f) Liens on Property at the time the Company or any
Restricted Subsidiary acquired the Property, including any acquisition
by means of a merger or consolidation with or into the Company or any
Restricted Subsidiary; provided, however, that any Lien of this kind
-------- -------
may not extend to any other Property of the Company or any Restricted
Subsidiary; provided further, however, that the Liens shall not have
---------------- -------
been Incurred in anticipation of or in connection with the transaction
or series of transactions pursuant to which the Property was acquired
by the Company or any Restricted Subsidiary;
28
(g) Liens on the Property of a Person at the time that Person
becomes a Restricted Subsidiary; provided, however, that any Lien of
-------- -------
this kind may not extend to any other Property of the Company or any
other Restricted Subsidiary that is not a direct Subsidiary of that
Person; provided further, however, that the Lien was not Incurred in
---------------- -------
anticipation of or in connection with the transaction or series of
transactions pursuant to which the Person became a Restricted
Subsidiary;
(h) pledges or deposits by the Company or any Restricted
Subsidiary under worker's compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Debt) or leases
to which the Company or any Restricted Subsidiary or any Restricted
Subsidiary is party, or deposits to secure public or statutory
obligations of the Company or any Restricted Subsidiary, or deposits
for the payment of rent, in each case Incurred in the ordinary course
of business;
(i) Liens (including, without limitation and to the extent
constituting Liens, negative pledges), assignments and pledges of
rights to receive premiums, interest or loss payments or otherwise
arising in connection with worker's compensation loss portfolio
transfer insurance transactions or any insurance or reinsurance
agreements pertaining to losses covered by insurance, and Liens
(including, without limitation and to the extent constituting Liens,
negative pledges) in favor of insurers or reinsurers on pledges or
deposits by the Company or any Restricted Subsidiary under workmen's
compensation laws, unemployment insurance laws or similar legislation;
(j) utility easements, building restrictions and such other
encumbrances or charges against real Property as are of a nature
generally existing with respect to properties of a similar character;
(k) Liens arising out of judgments or awards against the
Company or a Restricted Subsidiary with respect to which the Company or
the Restricted Subsidiary shall then be proceeding with an appeal or
other proceeding for review;
29
(l) Liens in favor of surety bonds or letters of credit issued
pursuant to the request of and for the account of the Company or a
Restricted Subsidiary in the ordinary course of its business, provided
that these letters of credit do not constitute Debt;
(m) leases or subleases of real property granted by the
Company or a Restricted Subsidiary to any other Person in the ordinary
course of business and not materially impairing the use of the real
property in the operation of the business of the Company or the
Restricted Subsidiary;
(n) Liens (including, without limitation and to the extent
constituting Liens, negative pledges) on intellectual property arising
from intellectual property licenses entered into in the ordinary course
of business;
(o) Liens or negative pledges attaching to or related to joint
ventures engaged in a Related Business, restricting Liens on interests
in those joint ventures;
(p) Liens existing on the Issue Date not otherwise described
in clauses (a) through (o) above;
(q) Liens not otherwise described in clauses (a) through (p)
above on the Property of any Restricted Subsidiary to secure any Debt
permitted to be Incurred by the Restricted Subsidiary pursuant to
Section 4.04;
(r) Liens on the Property of the Company or any Restricted
Subsidiary to secure any Refinancing, in whole or in part, of any Debt
secured by Liens referred to in clause (b), (e), (f), (g), (k) or (l)
above; provided, however, that any Lien of this kind shall be limited
-------- -------
to all or part of the same Property that secured the original Lien
(together with improvements and accessions to such Property) and the
aggregate principal amount of Debt that is secured by the Lien shall
not be increased to an amount greater than the sum of:
(1) the outstanding principal amount, or, if greater, the
committed amount, of the Debt ecured by ▇▇▇▇▇ described under
clause (b), (e), (f), (g), (k) or (l) above, as the case may
be, at the time the original Lien became a Permitted Lien
under the indenture, and
30
(2) an amount necessary to pay any fees and expenses,
including premiums and defeasance costs, incurred by the
Company or the Restricted Subsidiary in connection with the
Refinancing;
(s) Liens not otherwise permitted by clauses (a) through (r)
above that are Liens permitted by the Existing Bank Credit Facilities
as they exist on the Issue Date; and
(t) Liens not otherwise permitted by clauses (a) through (s)
above encumbering assets having an aggregate Fair Market Value not in
excess of 5.0% of Consolidated Net Tangible Assets, as determined based
on the consolidated balance sheet of the Company as of the end of the
most recent fiscal quarter ending at least 45 days prior to the date
the Lien shall be Incurred.
"Permitted Refinancing Debt" means any Debt that Refinances
any other Debt, including any successive Refinancings, so long as:
(a) the new Debt is in an aggregate principal amount (or if
Incurred with original issue discount, an aggregate issue price) not in
excess of the sum of:
(1) the aggregate principal amount (or if Incurred
with original issue discount, the aggregate accreted value)
then outstanding of the Debt being Refinanced, and
(2) an amount necessary to pay any fees and expenses,
including premiums and defeasance costs, related to the
Refinancing,
(b) the Average Life of the new Debt is equal to or greater
than the Average Life of the Debt being Refinanced,
(c) the Stated Maturity of the new Debt is no earlier than the
Stated Maturity of the Debt being Refinanced, and
(d) the new Debt shall not be senior in right of payment to
the Debt that is being Refinanced;
31
provided, however, that Permitted Refinancing Debt shall not include:
-------- -------
(x) Debt of a Subsidiary that Refinances Debt of the Company
or
(y) Debt of the Company or a Restricted Subsidiary that
Refinances Debt of an Unrestricted Subsidiary.
"Person" means any individual, corporation, company (including
any limited liability company), association, partnership, joint venture, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
the payment of dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of that Person, over shares
of any other class of Capital Stock issued by that Person.
"Preferred Stock Dividends" means all dividends with respect
to Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Wholly Owned Restricted Subsidiary. The amount of any dividend of
this kind shall be equal to the quotient of the dividend divided by the
difference between one and the maximum statutory federal income rate (expressed
as a decimal number between 1 and 0) then applicable to the issuer of the
Preferred Stock.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms hereof, a calculation performed in
accordance with Article 11 of Regulation S-X promulgated under the Securities
Act, as interpreted in good faith by the Board of Directors after consultation
with the independent certified public accountants of the Company, or otherwise
a calculation made in good faith by the Board of Directors after consultation
with the independent certified public accountants of the Company, as the case
may be.
"Property" means, with respect to any Person, any interest of
that Person in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible, including Capital Stock in, and other securities of,
any other Person. For purposes of any calculation required pursuant to the
indenture, the value of any Property shall be its Fair Market Value.
32
"principal" of any Debt (including the Securities) means the
principal amount of such Debt plus the premium, if any, on such Debt.
"Public Equity Offering" means an underwritten public offering
of common stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Public Market" means any time after:
(a) a Public Equity Offering has been consummated, and
(b) at least 15% of the total issued and outstanding common
stock of the Company has been distributed by means of an effective
registration statement under the Securities Act.
"Purchase Money Debt" means Debt:
(a) consisting of the deferred purchase price of property,
conditional sale obligations, obligations under any title retention
agreement, other purchase money obligations and obligations in respect
of industrial revenue bonds, in each case where the maturity of the
Debt does not exceed the anticipated useful life of the Property being
financed, and
(b) Incurred to finance the acquisition, construction or lease
by the Company or a Restricted Subsidiary of the Property, including
additions and improvements thereto;
provided, however, that the Debt is Incurred within 180 days after the
-------- -------
acquisition, construction or lease of the Property by the Company or Restricted
Subsidiary.
"Qualified Receivables Transaction" means any transaction or
series of transactions that may be entered into by the Company or any of its
Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell,
convey or otherwise transfer to:
(a) a Receivables Entity (in the case of a transfer by the
Company or any of its Subsidiaries) and
33
(b) any other Person (in the case of a transfer by a
Receivables Entity),
or may grant a security interest in, any accounts receivable (whether now
existing or arising in the future) of the Company or any of its Subsidiaries,
and any assets related thereto including, without limitation, all collateral
securing those accounts receivable, all contracts and all Guarantees or other
obligations in respect of those accounts receivable, proceeds of those accounts
receivable and other assets which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable; provided that:
(1) if the transaction involves a transfer of accounts
receivable with Fair Market Value equal to or greater than
$25.0 million, the Board of Directors shall have determined in
good faith that the Qualified Receivables Transaction is
economically fair and reasonable to the Company and the
Receivables Entity,
(2) all sales of accounts receivable and related assets
to or by the Receivables Entity are made at Fair Market Value
and
(3) the financing terms, covenants, termination events
and other provisions thereof shall be market terms (as
determined in good faith by the Board of Directors).
The grant of a security interest in any accounts receivable of the
Company or any of its Restricted Subsidiaries to secure the Credit Facilities
shall not be deemed a Qualified Receivables Transaction.
"Rating Agencies" mean ▇▇▇▇▇'▇ and S&P.
"Real Estate Financing Transaction" means any arrangement with
any Person pursuant to which the Company or any Restricted Subsidiary Incurs
Debt secured by a Lien on real property of the Company or any Restricted
Subsidiary and related personal property together with any Refinancings thereof.
"Receivables Entity" means a Wholly Owned Subsidiary of the
Company (or another Person formed for the purposes of engaging in a Qualified
Receivables Transaction with the Company in which the Company or any Subsidiary
of the Company makes an Investment and to which the Company or any Subsidiary of
the Company transfers accounts receivable
34
and related assets) which engages in no activities other than in connection with
the financing of accounts receivable of the Company and its Subsidiaries, all
proceeds thereof and all rights (contractual or other), collateral and other
assets relating thereto, and any business or activities incidental or related to
that business, and (with respect to any Receivables Entity formed after the
Issue Date) which is designated by the Board of Directors (as provided below) as
a Receivables Entity and
(a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which
(1) is Guaranteed by the Company or any Subsidiary of the
Company (excluding Guarantees of obligations (other than the
principal of, and interest on, Indebtedness) pursuant to
Standard Securitization Undertakings),
(2) is recourse to or obligates the Company or any
Subsidiary of the Company in any way other than pursuant to
Standard Securitization Undertakings or
(3) subjects any property or asset of the Company or any
Subsidiary of the Company, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other
than pursuant to Standard Securitization Undertakings;
(b) with which neither the Company nor any Subsidiary of the
Company has any material contract, agreement, arrangement or
understanding other than on terms which the Company reasonably believes
to be no less favorable to the Company or the Subsidiary than those
that might be obtained at the time from Persons that are not Affiliates
of the Company and
(c) to which neither the Company nor any Subsidiary of the
Company has any obligation to maintain or preserve the entity's
financial condition or cause the entity to achieve certain levels of
operating results other than pursuant to Standard Securitization
Undertakings.
Any designation of this kind by the Board of Directors shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors giving effect to the designation and an
Officers' Certificate certifying that the designation complied with the
foregoing conditions.
35
"Refinance" means, in respect of any Debt, to refinance,
extend, renew, refund, repay, prepay, repurchase, redeem, defease or retire, or
to issue other Debt, in exchange or replacement for, that Debt.
"Refinanced" and "Refinancing" shall have correlative
meanings.
"Related Business" means any business that is related,
ancillary or complementary to the businesses of the Company and the Restricted
Subsidiaries on the Issue Date.
"Repay" means, in respect of any Debt, to repay, prepay,
repurchase, redeem, legally defease or otherwise retire that Debt. "Repayment"
and "Repaid" shall have correlative meanings. For purposes of Section 4.07 and
Section 4.04 and the definition of "Consolidated Fixed Charges Coverage Ratio",
Debt shall be considered to have been Repaid only to the extent the related loan
commitment, if any, shall have been permanently reduced in connection therewith.
"Restricted Payment" means:
(a) any dividend or distribution (whether made in cash,
securities or other Property) declared or paid on or with respect to
any shares of Capital Stock of the Company or any Restricted Subsidiary
(including any payment in connection with any merger or consolidation
with or into the Company or any Restricted Subsidiary), except for any
dividend or distribution that is made to the Company or the parent of
the Restricted Subsidiary or any dividend or distribution payable
solely in shares of Capital Stock (other than Disqualified Stock) of
the Company;
(b) the purchase, repurchase, redemption, acquisition or
retirement for value of any Capital Stock of the Company or any
Restricted Subsidiary (other than from the Company or a Restricted
Subsidiary) or any securities exchangeable for or convertible into
Capital Stock of the Company or any Restricted Subsidiary, including
the exercise of any option to exchange any Capital Stock (other than
for or into Capital Stock of the Company that is not Disqualified
Stock);
(c) the purchase, repurchase, redemption, acquisition or
retirement for value, prior to the date for any scheduled maturity,
sinking fund or amortization or other installment payment, of any
36
Subordinated Obligation (other than the purchase, repurchase or other
acquisition of any Subordinated Obligation purchased in anticipation of
satisfying a scheduled maturity, sinking fund or amortization or other
installment obligation, in each case due within one year of the date of
acquisition);
(d) any Investment (other than Permitted Investments) in any
Person; or
(e) the issuance, sale or other disposition of Capital Stock
of any Restricted Subsidiary to a Person other than the Company or
another Restricted Subsidiary if the result thereof is that the
Restricted Subsidiary shall cease to be a Restricted Subsidiary, in
which event the amount of the "Restricted Payment" shall be the Fair
Market Value of the remaining interest, if any, in the former
Restricted Subsidiary held by the Company and the other Restricted
Subsidiaries.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Service or any successor
to the rating agency business thereof.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement relating to Property now owned or hereafter acquired whereby the
Company or a Restricted Subsidiary transfers that Property to another Person and
the Company or a Restricted Subsidiary leases it from that other Person together
with any Refinancings thereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933.
"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which are customary in an accounts receivable
securitization transaction involving a comparable company.
37
"Stated Maturity" means, with respect to any security, the
date specified in the security as the fixed date on which the payment of
principal of the security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of the security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless that
contingency has occurred).
"Subordinated Obligation" means any Debt of the Company
(whether outstanding on the Issue Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation,
company (including any limited liability company), association, partnership,
joint venture or other business entity of which a majority of the total voting
power of the Voting Stock is at the time owned or controlled, directly or
indirectly, by:
(a) that Person,
(b) that Person and one or more Subsidiaries of that Person,
or
(c) one or more Subsidiaries of that Person.
"Temporary Cash Investments" means any of the following:
(a) Investments in U.S. Government Obligations maturing within
365 days of the date of acquisition thereof;
(b) Investments in time deposit accounts, banker's
acceptances, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a bank or
trust company organized under the laws of the United States of America
or any state thereof having capital, surplus and undivided profits
aggregating in excess of $500 million or issued by a commercial bank
organized under the laws of any other country that is a member of the
Organization for Economic Cooperation and Development having total
assets in excess of $500 million (or its foreign currency equivalent at
the time), and in any case whose long-term debt is rated "A-3" or "A-"
or higher according to ▇▇▇▇▇'▇ or S&P (or a similar
38
equivalent rating by at least one "nationally recognized statistical
rating organization" (as defined in Rule 436 under the Securities
Act));
(c) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (a)
entered into with:
(1) a bank meeting the qualifications described in clause
(b) above, or
(2) any primary government securities dealer reporting to
the Market Reports Division of the Federal Reserve Bank of New
York;
(d) Investments in commercial paper, maturing not more than
270 days after the date of acquisition, issued by a corporation (other
than an Affiliate of the Company) organized and in existence under the
laws of the United States of America or any other country that is a
member of the Organization for Economic Cooperation and Development,
and in any case with a rating at the time as of which any Investment
therein is made of "P-1" (or higher) according to ▇▇▇▇▇'▇ or"A-1" (or
higher) according to S&P (or a similar equivalent rating by at least
one "nationally recognized statistical rating organization" (as defined
in Rule 436 under the Securities Act); and
(e) direct obligations (or certificates representing an
ownership interest in such obligations) of any state of the United
States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of such state is pledged
and which are not callable or redeemable at the issuer's option,
provided that:
(1) the long-term debt of the state is rated "A-3" or
"A-" or higher according to ▇▇▇▇▇'▇ or S&P (or a similar
equivalent rating by at least one "nationally recognized
statistical rating organization" (as defined in Rule 436 under
the Securities Act)), and
(2) the obligations mature within 180 days of the date of
acquisition thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇.
77aaa-77bbbb) as in effect on the date of this Indenture; provided, however,
that, in the event the TIA is amended after such date, "Trust Indenture Act"
means, to the
39
extent required by any such amendments, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer within the Corporate Trust
Administration department of the Trustee (or any successor group of the trustee)
with direct responsibility for the administration of this Indenture and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means:
(a) any Subsidiary of the Company that is designated after the
Issue Date as an Unrestricted Subsidiary as permitted or required
pursuant to Section 4.10 and is not thereafter redesignated as a
Restricted Subsidiary as permitted pursuant thereto; and
(b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Dollar Equivalent" means with respect to any monetary
amount in a currency other than U.S. dollars, at any time for determination
thereof, the amount of U.S. dollars obtained by converting such foreign currency
involved in such computation into U.S. dollars at the spot rate for the purchase
of U.S. dollars with the applicable foreign currency as published in THE WALL
STREET JOURNAL in the "Exchange Rates" column under the heading "Currency
Trading" on the date two Business Days prior to such determination. In
determining the aggregate principal amount of Euro Notes outstanding, such
amount will be treated as the U.S. Dollar Equivalent determined as of the date
of issuance of such Euro Notes.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
40
"Voting Stock" of any Person means all classes of Capital
Stock or other interests (including partnership interests, and in the case of
the Company, Voting Trust Certificates) of that Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"Voting Trust Arrangement" means the Voting Trust Arrangement
entered into as of April 15, 1996 by and among ▇▇▇▇▇▇ ▇. ▇▇▇▇; ▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇.; ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.; and ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the Voting Trustees and the
stockholders of the Company who are parties thereto.
"Voting Trust Certificates" means those certificates issued
pursuant to the Voting Trust Arrangement.
"Voting Trustees" means the persons entitled to act as voting
trustees under the Voting Trust Arrangement.
"Wholly Owned Restricted Subsidiary" means, at any time, a
Restricted Subsidiary all the Voting Stock of which (except directors'
qualifying shares) is at that time owned, directly or indirectly, by the Company
and its other Wholly Owned Subsidiaries.
SECTION 1.02. Other Definitions.
-----------------
Defined in
Term Section
---- ----------
"Affiliate Transaction" 4.09
"Bankruptcy Law" 6.01
"Change of Control Offer" 4.12
"Change of Control Payment Date" 4.12
"Change of Control Purchase Price" 4.12
"covenant defeasance option" 8.01
"Custodian" 6.01
"Event of Default" 6.01
"Exchange Security" Appendix A
"Global Security" Appendix A
"legal defeasance option" 8.01
"Legal Holiday" 10.08
"Offer Amount" 4.07
"Offer Period" 4.07
41
"Original Securities" 2.01
"Paying Agent" 2.04
"Prepayment Offer" 4.07
"Registered Exchange Offer" Appendix A
"Registrar" 2.04
"Shelf Registration statement" Appendix A
"Surviving Person" 5.01
SECTION 1.03. Incorporation by Reference of Trust Indenture
-----------------------------------------------
Act. This Indenture is subject to the mandatory provisions of the TIA, which are
---
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
---------------------
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
42
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured Debt shall not be deemed to be subordinate or
junior to secured Debt merely by virtue of its nature as unsecured
Debt;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be the
greater of (i) the maximum liquidation value of such Preferred Stock or
(ii) the maximum mandatory redemption or mandatory repurchase price
with respect to such Preferred Stock.
ARTICLE II
The Securities
--------------
SECTION 2.01. Amount of Securities; Issuable in Series. The
-----------------------------------------
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is (x) $850.0 million less (y) the aggregate
principal amount (on a U.S. Dollar Equivalent basis) of any Euro Notes issued by
the Company. All Securities shall be identical in all respects other than issue
prices and issuance dates. The Securities may be issued in one or more series;
provided, however, that any Securities issued with original issue discount
-------- -------
("OID") for Federal income tax purposes shall not be issued as part of the same
series as any Securities that are issued with a different amount of OID or are
not issued with OID. All Securities of any one series shall be substantially
identical except as to denomination.
Subject to Section 2.03, the Trustee shall authenticate
Securities for original issue on the Issue Date in the aggregate principal
amount of $380.0 million (the "Original Securities"). With respect to any
Securities issued after the Issue Date (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
Original Securities pursuant to Section 2.07, 2.08, 2.09 or 3.06 or Appendix A),
there shall be established in or pursuant to a resolution of the Board of
Directors, and subject to Section 2.03, set forth, or determined in the manner
provided in an Officers'
43
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of such Securities:
(1) whether such Securities shall be issued as part of a new
or existing series of Securities and the title of such Securities
(which shall distinguish the Securities of the series from Securities
of any other series);
(2) the aggregate principal amount of such Securities that may
be authenticated and delivered under this Indenture, which shall be in
an aggregate principal amount not to exceed (x) $350.0 million less (y)
the aggregate principal amount (on a U.S. Dollar Equivalent basis) of
any Euro Notes issued by the Company that are not Issue Date Euro Notes
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
same series pursuant to Section 2.07, 2.08, 2.09 or 3.06 or Appendix A
and except for Securities which, pursuant to Section 2.03, are deemed
never to have been authenticated and delivered hereunder);
(3) the issue price and issuance date of such Securities,
including the date from which interest on such Securities shall accrue;
(4) if applicable, that such Securities shall be issuable in
whole or in part in the form of one or more Global Securities and, in
such case, the respective depositories for such Global Securities, the
form of any legend or legends that shall be borne by any such Global
Security in addition to or in lieu of that set forth in Exhibit 1 to
Appendix A and any circumstances in addition to or in lieu of those set
forth in Section 2.3 of Appendix A in which any such Global Security
may be exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the depository for such
Global Security or a nominee thereof; and
(5) if applicable, that such Securities shall not be issued in
the form of Initial Securities subject to Appendix A, but shall be
issued in the form of Exchange Securities as set forth in Exhibit A.
44
If any of the terms of any series are established by action
taken pursuant to a resolution of the Board of Directors, a copy of an
appropriate record of such action shall be certified by the Secretary or any
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate or the trust indenture supplemental
hereto setting forth the terms of the series.
SECTION 2.02. Form and Dating. Provisions relating to the
----------------
Initial Securities of each series and the Exchange Securities are set forth in
Appendix A, which is hereby incorporated in and expressly made part of this
Indenture. The Initial Securities of each series and the Trustee's certificate
of authentication shall be substantially in the form of Exhibit 1 to Appendix A
which is hereby incorporated in and expressly made a part of this Indenture. The
Exchange Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A, which is hereby incorporated in and
expressly made a part of this Indenture. The Securities of each series may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company is subject, if any, or usage, provided that any
such notation, legend or endorsement is in a form reasonably acceptable to the
Company. Each Security shall be dated the date of its authentication. The terms
of the Securities of each series set forth in Exhibit 1 to Appendix A and
Exhibit A are part of the terms of this Indenture.
SECTION 2.03. Execution and Authentication. Two Officers shall
----------------------------
sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
written order of the Company in the form of an Officers' Certificate for the
authentication and delivery of such Securities, and the Trustee in accordance
with such written order of the Company shall authenticate and deliver such
Securities.
45
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.04. Registrar and Paying Agent. The Company shall
---------------------------
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of any such agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant to Section
7.07. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer
agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
SECTION 2.05. Paying Agent To Hold Money in Trust. Prior to
-----------------------------------
each due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of
46
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Company in making any such payment. If the Company
or a Wholly Owned Subsidiary acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust fund. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed by the Paying Agent. Upon complying with
this Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.06. Securityholder Lists. The Trustee shall preserve
--------------------
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.07. Replacement Securities. If a mutilated Security
----------------------
is surrendered to the Registrar or if the Holder of a Security claims that such
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities. Securities outstanding
-----------------------
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
47
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, then on and after that date such Securities (or portions thereof) cease
to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Temporary Securities. Until definitive
----------------------
Securities are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Securities
and deliver them in exchange for temporary Securities.
SECTION 2.10. Cancellation. The Company at any time may
------------
deliver Securities to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel and dispose of all Securities surrendered for registration of transfer,
exchange, payment or cancellation in its customary manner. The Company may not
issue new Securities to replace Securities it has redeemed, paid or delivered to
the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Company defaults in a
------------------
payment of interest on the Securities, the Company shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the persons who
are Securityholders on a subsequent special record date. The Company shall fix
or cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
48
SECTION 2.12. CUSIP Numbers. The Company in issuing the
--------------
Securities may use "CUSIP", "ISIN" or "Common Code" numbers (if then generally
in use) and, if so, the Trustee shall use "CUSIP", "ISIN" or "Common Code"
numbers in notices of redemption as a convenience to Holders; provided,
--------
however, that neither the Company nor the Trustee shall have any responsibility
--------
for any defect in the "CUSIP", "ISIN" or "Common Code" number that appears on
any Security, check, advice of payment or redemption notice, and any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in such numbers.
ARTICLE III
Redemption
----------
SECTION 3.01. Notices to Trustee. If the Company elects to
------------------
redeem Securities pursuant to paragraph 5 of the Securities, it shall notify
the Trustee in writing of the redemption date, the principal amount of
Securities to be redeemed and that such redemption is being made pursuant to
paragraph 5 of the Securities.
The Company shall give each notice to the Trustee provided for
in this Section at least 45 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
--------------------------------------
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances. The
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than $1,000. Securities
and portions of them the Trustee selects shall be
49
in amounts of $1,000 or a whole multiple of $1,000. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the Company promptly
of the Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not
--------------------
more than 60 days before a date for redemption of Securities, the Company shall
mail a notice of redemption by first-class mail to each Holder of Securities to
be redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be
redeemed, the identification and principal amounts of the particular
Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment, interest on Securities (or portion thereof) called
for redemption ceases to accrue on and after the redemption date; and
(7) that no representation is made as to the correctness or
accuracy of the CUSIP, ISIN or Common Code number, if any, listed in
such notice or printed on the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section at least 45 days before the redemption date.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
------------------------------
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid
50
at the redemption price stated in the notice, plus accrued interest to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the related interest payment date that is
on or prior to the date of redemption). Failure to give notice or any defect in
the notice to any Holder shall not affect the validity of the notice to any
other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the
------------------------------
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Wholly Owned Subsidiary is the Paying Agent, shall segregate and
hold in trust) money sufficient to pay the redemption price of and accrued
interest (subject to the right of Holders of record on the relevant record date
to receive interest due on the related interest payment date that is on or prior
to the date of redemption) on all Securities to be redeemed on that date other
than Securities or portions of Securities called for redemption that have been
delivered by the Company to the Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
---------------------------
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
Covenants
---------
SECTION 4.01. Covenant Suspension. During any period of time
-------------------
that:
(a) the Securities have Investment Grade Ratings from both
Rating Agencies and
(b) no Default or Event of Default has occurred and is
continuing under the Indenture, the Company and the Restricted
Subsidiaries will not be subject to the following Sections of the
Indenture: Section 4.04, Section 4.05, Section 4.07, Section 4.08,
clause (x) of the third paragraph (and as referred to in the first
paragraph) of Section 4.10, and clause (e) of the first paragraph of
Article 5.
51
(collectively, the "Suspended Covenants"). In the event that the Company and the
Restricted Subsidiaries are not subject to the Suspended Covenants for any
period of time as a result of the preceding sentence and, subsequently, one or
both of the Rating Agencies withdraws its rating or downgrades the rating
assigned to the Securities below the required Investment Grade Rating or a
Default or Event of Default occurs and is continuing, then the Company and the
Restricted Subsidiaries will thereafter again be subject to the Suspended
Covenants for all periods after that withdrawal, downgrade, Default or Event of
Default and, furthermore, compliance with the provisions of Section 4.05 with
respect to Restricted Payments made after the time of the withdrawal, downgrade,
Default or Event of Default will be calculated in accordance with the terms of
that covenant as though that covenant had been in effect during the entire
period of time from the Issue Date, provided that there will not be deemed to
have occurred a Default or Event of Default with respect to that covenant during
the time that the Company and the Restricted Subsidiaries were not subject to
the Suspended Covenants (or after that time based solely on events that occurred
during that time).
SECTION 4.02. Payment of Securities. The Company shall
-----------------------
promptly pay the principal of and interest on the Securities on the dates and
in the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee
or the Paying Agent holds in accordance with this Indenture money sufficient to
pay all principal and interest then due.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the rate borne by the Securities to the extent
lawful.
SECTION 4.03. SEC Reports. Notwithstanding that the Company
-----------
may not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Commission and provide the Trustee
and Holders of Securities with annual reports and information, documents and
other reports as are specified in Sections 13 and 15(d) of the Exchange Act and
applicable to a U.S. corporation subject to those Sections, and the information,
documents and reports to be so filed and provided at the times specified for the
filing of the information, documents and reports under those Sections; provided,
--------
however, that the Company shall not be so obligated to file the information,
-------
documents and reports with the Commission if
52
the Commission does not permit those filings. The Company shall also comply with
the other provisions of TIA ss. 314(a). Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officer's
Certificates).
SECTION 4.04. Limitation on Debt. The Company shall not, and
------------------
shall not permit any Restricted Subsidiary to, Incur, directly or indirectly,
any Debt unless, after giving effect to the application of the proceeds
thereof, no Default or Event of Default would occur as a consequence of the
Incurrence or be continuing following the Incurrence and either:
(1) the Debt is Debt of the Company and after giving effect to
the Incurrence of the Debt and the application of the proceeds thereof,
the Consolidated Fixed Charges Coverage Ratio would be greater than
2.00 to 1.00 if the Debt is Incurred from the Issue Date through
January 15, 2004, and 2.50 to 1.00 if the Debt is Incurred thereafter,
or
(2) the Debt is Permitted Debt.
The term "Permitted Debt" is defined to include the following:
(a) Debt of the Company evidenced by the Original Securities;
(b) Debt of the Company or a Restricted Subsidiary under any
Credit Facilities, Incurred by the Company or a Restricted Subsidiary
pursuant to a Real Estate Financing Transaction, a Sale and Leaseback
Transaction or an Equipment Financing Transaction, or Incurred by a
Receivables Entity in a Qualified Receivables Transaction that is not
recourse to the Company or any other Restricted Subsidiary of the
Company (except for Standard Securitization Undertakings), provided
that the aggregate principal amount of all Debt of this kind at any one
time outstanding shall not exceed the greater of:
53
(1) $1.6 billion, which amount shall be permanently reduced by
the amount of Net Available Cash used to Repay Debt under the Credit
Facilities pursuant to Section 4.07 and
(2) the sum of the amounts equal to:
(A) 50% of the book value of the inventory of the
Company and the Restricted Subsidiaries and
(B) 85% of the book value of the accounts receivable
of the Company and the Restricted Subsidiaries, in the case of
each of clauses (A) and (B) as of the most recently ended
quarter of the Company for which financial statements of the
Company have been provided to the Holders of Securities;
(c) Debt of the Company owing to and held by any Restricted
Subsidiary and Debt of a Restricted Subsidiary owing to and held by the
Company or any Restricted Subsidiary; provided, however, that (1) any
-------- -------
subsequent issue or transfer of Capital Stock or other event that
results in any Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of that Debt (except to the
Company or a Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of that Debt by the issuer thereof, and (2)
if the Company is the obligor on that Indebtedness, the Indebtedness is
expressly subordinated to the prior payment in full in cash of all
obligations with respect to the Securities;
(d) Debt of a Restricted Subsidiary outstanding on the date on
which that Restricted Subsidiary was acquired by the Company or
otherwise became a Restricted Subsidiary (other than Debt Incurred as
consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of
transactions pursuant to which that Restricted Subsidiary became a
Subsidiary of the Company or was otherwise acquired by the Company),
provided that at the time that Restricted Subsidiary was acquired by
the Company or otherwise became a Restricted Subsidiary and after
giving effect to the Incurrence of that Debt, the Company would have
been able to Incur $1.00 of additional Debt pursuant to clause (1) of
the first paragraph of this covenant;
54
(e) Debt under Interest Rate Agreements entered into by the
Company or a Restricted Subsidiary for the purpose of limiting interest
rate risk in the ordinary course of the financial management of the
Company or that Restricted Subsidiary and not for speculative purposes,
provided that the obligations under those agreements are related to
payment obligations on Debt otherwise permitted by the terms of this
covenant;
(f) Debt under Currency Exchange Protection Agreements entered
into by the Company or a Restricted Subsidiary for the purpose of
limiting currency exchange rate risks directly related to transactions
entered into by the Company or that Restricted Subsidiary in the
ordinary course of business and not for speculative purposes;
(g) Debt under Commodity Price Protection Agreements entered
into by the Company or a Restricted Subsidiary in the ordinary course
of the financial management of the Company or that Restricted
Subsidiary and not for speculative purposes;
(h) Debt Incurred in respect of Capital Lease Obligations and
Purchase Money Debt, provided that the aggregate principal amount of
all Debt of this kind does not exceed the Fair Market Value, on the
date of Incurrence thereof, of the Property acquired, constructed or
leased, and provided further, that the aggregate principal amount
outstanding of all Debt of this kind at any one time, together with all
Permitted Refinancing Debt Incurred and outstanding in respect of these
Capital Lease Obligations and Purchase Money Debt, does not exceed
$50.0 million;
(i) Debt outstanding on the Issue Date not otherwise described
in clauses (a) through (h) above;
(j) Debt of the Company or a Restricted Subsidiary in an
aggregate principal amount outstanding at any one time not to exceed
$100.0 million; and
(k) Permitted Refinancing Debt Incurred in respect of Debt
Incurred pursuant to clause (1) of the first paragraph of this covenant
and clauses (a), (d), (h) and (i) above.
55
SECTION 4.05. Limitation on Restricted Payments. The Company
---------------------------------
shall not make, and shall not permit any Restricted Subsidiary to make, directly
or indirectly, any Restricted Payment if at the time of, and after giving effect
to, the proposed Restricted Payment,
(a) a Default or Event of Default shall have occurred and be
continuing,
(b) the Company could not Incur at least $1.00 of additional
Debt pursuant to clause (1) of the first paragraph of Section 4.04 or
(c) the aggregate amount of that Restricted Payment and all
other Restricted Payments declared or made since the Issue Date (the
amount of any Restricted Payment, if made other than in cash, to be
based upon Fair Market Value) would exceed an amount equal to the sum
of:
(1) 50% of the aggregate amount of Consolidated Net
Income accrued during the period (treated as one accounting
period) from the beginning of the fiscal quarter during which
the Issue Date occurs to the end of the most recent fiscal
quarter ending at least 45 days prior to the date of the
Restricted Payment (or if the aggregate amount of Consolidated
Net Income for such period shall be a deficit, minus 100% of
such deficit), plus
(2) Capital Stock Sale Proceeds, plus
(3) the sum of:
(A) the aggregate net cash proceeds received
by the Company or any Restricted Subsidiary from the
issuance or sale after the Issue Date of convertible
or exchangeable Debt that has been converted into or
exchanged for Capital Stock (other than Disqualified
Stock) of the Company, and
(B) the aggregate amount by which Debt of
the Company or any Restricted Subsidiary is reduced
on the Company's consolidated balance sheet on or
after the Issue Date upon the conversion or exchange
of any Debt issued or sold on or prior to the Issue
Date that is convertible or exchangeable for Capital
Stock (other than Disqualified Stock) of the
56
Company, excluding, in the case of clause (A) or (B):
(x) any Debt issued or sold to the Company or a Subsidiary of
the Company or an employee stock ownership plan or trust established by
the Company or any Subsidiary for the benefit of their employees, and
(y) the aggregate amount of any cash or other Property
distributed by the Company or any Restricted Subsidiary upon any such
conversion or exchange, plus
(4) an amount equal to the sum of:
(A) the net reduction in Investments in any
Person other than the Company or a Restricted
Subsidiary resulting from dividends, repayments of
loans or advances or other transfers of Property, in
each case to the Company or any Restricted Subsidiary
from that Person, less the cost of the disposition of
those Investments, and
(B) the lesser of the net book value or the
Fair Market Value of the Company's equity interest in
an Unrestricted Subsidiary at the time the
Unrestricted Subsidiary is designated a Restricted
Subsidiary; provided, however, that the foregoing sum
shall not exceed, in the case of any Person, the
amount of Investments previously made (and treated as
a Restricted Payment) by the Company or any
Restricted Subsidiary in that Person.
Notwithstanding the foregoing limitation, the Company may:
(a) pay dividends on its Capital Stock within 60 days of the
declaration thereof if, on said declaration date, the dividends could
have been paid in compliance with the Indenture; provided, however,
that at the time of the payment of the dividend, no other Default or
Event of Default shall have occurred and be continuing (or result
therefrom); provided further, however, that the dividend shall be
included in the calculation of the amount of Restricted Payments;
(b) purchase, repurchase, redeem, legally defease, acquire or
retire for value Capital Stock of the Company or Subordinated
Obligations in exchange for, or
57
out of the proceeds of the substantially concurrent sale of, Capital Stock of
the Company (other than Disqualified Stock and other than Capital Stock issued
or sold to a Subsidiary of the Company or an employee stock ownership plan or
trust established by the Company or any Subsidiary for the benefit of their
employees); provided, however, that
-------- -------
(1) the purchase, repurchase, redemption, legal
defeasance, acquisition or retirement shall be excluded in the
calculation of the amount of Restricted Payments and
(2) the Capital Stock Sale Proceeds from the exchange or
sale shall be excluded from the calculation pursuant to clause
(c)(2) above;
(c) purchase, repurchase, redeem, legally defease, acquire or
retire for value any Subordinated Obligations in exchange for, or out
of the proceeds of the substantially concurrent sale of, Permitted
Refinancing Debt; provided, however, that the purchase, repurchase,
-------- -------
redemption, legal defeasance, acquisition or retirement shall be
excluded in the calculation of the amount of Restricted Payments;
(d) pay scheduled dividends (not constituting a return on
capital) on Disqualified Stock of the Company issued pursuant to and in
compliance with Section 4.04;
(e) permit a Restricted Subsidiary that is not a Wholly Owned
Subsidiary to pay dividends to shareholders of that Restricted
Subsidiary that are not the parent of that Restricted Subsidiary, so
long as the Company or a Restricted Subsidiary that is the parent of
that Restricted Subsidiary receives dividends on a pro rata basis or on
a basis that results in the receipt by the Company or a Restricted
Subsidiary that is the parent of that Restricted Subsidiary of
dividends or distributions of greater value than it would receive on a
pro rata basis; and
(f) until January 31, 2002 or the earlier termination of all
of the Existing Bank Credit Facilities, permit the making of a
Restricted Payment (as defined in the Existing Bank Credit Facilities,
without giving effect to any waiver or amendment thereto after the
Issue Date) or the transfer of assets from any Subsidiary to its parent
(in each case, to the
58
extent such a payment or transfer is not permitted to be restricted or
limited under Section 7.18 of each of the Existing Bank Credit
Facilities, without giving effect to any waiver or amendment thereto
after the Issue Date).
SECTION 4.06. Limitation on Liens. The Company shall not, and
-------------------
shall not permit any Restricted Subsidiary to, directly or indirectly, Incur or
suffer to exist, any Lien (other than Permitted Liens) upon any of its Property
(including Capital Stock of a Restricted Subsidiary), whether owned at the Issue
Date or thereafter acquired, or any interest therein or any income or profits
therefrom, unless it has made or will make effective provision whereby the
Securities will be secured by that Lien equally and ratably with (or prior to)
all other Debt of the Company or any Restricted Subsidiary secured by that ▇▇▇▇.
SECTION 4.07. Limitation on Asset Sales. (a) The Company shall
-------------------------
not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
consummate any Asset Sale unless:
(i) the Company or the Restricted Subsidiary receives
consideration at the time of the Asset Sale at least equal to the Fair
Market Value of the Property subject to such Asset Sale;
(ii) at least 75% of the consideration paid to the Company or
the Restricted Subsidiary in connection with such Asset Sale is in the
form of cash or cash equivalents or the assumption by the purchaser of
liabilities of the Company or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Securities) as
a result of which the Company and the Restricted Subsidiaries are no
longer obligated with respect to such liabilities, provided, however,
-------- -------
that in the case of a transaction involving a sale of any distribution
center by the Company or a Restricted Subsidiary and the establishment
of an outsourcing arrangement in which the purchaser assumes
distribution responsibilities on behalf of the Company or the
Restricted Subsidiary, any credits or other consideration the purchaser
grants to the Company or the Restricted Subsidiary as part of the
purchase price of the distribution center, which credits or other
consideration effectively offset future payments due from the Company
or the Restricted Subsidiary to the purchaser as part of the
outsourcing
59
arrangement, will be considered to be cash equivalents for purposes of
this clause (ii); and
(iii) the Company delivers an Officers' Certificate to the
Trustee certifying that such Asset Sale complies with the foregoing
clauses (i) and (ii).
(b) The Net Available Cash (or any portion thereof) from Asset
Sales may be applied by the Company or a Restricted Subsidiary, to the extent
the Company or such Restricted Subsidiary elects (or is required by the terms of
any Debt):
(i) to Repay Debt under the Credit Facilities, or to Repay
Debt of the Company or any Restricted Subsidiary secured by a Lien
pursuant to Section 4.06 on the assets subject to that Asset Sale
(excluding, in any such case, any Debt owed to the Company or an
Affiliate of the Company); or
(ii) to reinvest in Additional Assets (including by means of
an Investment in Additional Assets by a Restricted Subsidiary with Net
Available Cash received by the Company or another Restricted
Subsidiary), provided, however, that the Net Available Cash (or any
-------- -------
portion thereof) from Asset Sales from the Company to any Subsidiary
must be reinvested in Additional Assets of the Company.
(c) Any Net Available Cash from an Asset Sale not applied in
accordance with the preceding paragraph within 360 days from the date of the
receipt of such Net Available Cash shall constitute "Excess Proceeds".
When the aggregate amount of Excess Proceeds not previously
subject to a Prepayment Offer (as defined below) exceeds $10.0 million (taking
into account income earned on those Excess Proceeds, if any), the Company will
be required to make an offer to purchase the Securities (the "Prepayment
Offer") which offer shall be in the amount of the Allocable Excess Proceeds, on
a pro rata basis according to principal amount, at a purchase price equal to
100% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the purchase date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), in
accordance with the procedures (including prorating in the event of
oversubscription) set forth in this Indenture. To the extent that any portion
of the amount of Net Available Cash remains after compliance with the preceding
sentence and provided that all Holders of Securities have been given the
60
opportunity to tender their Securities for purchase in accordance with this
Indenture, the Company or such Restricted Subsidiary may use the remaining
amount for any purpose permitted by this Indenture and the amount of Excess
Proceeds will be reset to zero.
The term "Allocable Excess Proceeds" will mean the product of:
(a) the Excess Proceeds and
(b) a fraction,
(1) the numerator of which is the aggregate principal
amount of the Securities outstanding on the date of the
Prepayment Offer, and
(2) the denominator of which is the sum of the aggregate
principal amount of the Securities outstanding on the date of
the Prepayment Offer and the aggregate principal amount of
other Debt of the Company outstanding on the date of the
Prepayment Offer that is pari passu in right of payment with
the Securities and subject to terms and conditions in respect
of Asset Sales similar in all material respects to the
covenant described hereunder and requiring the Company to make
an offer to purchase such Debt at substantially the same time
as the Prepayment Offer.
(d)(1) Within five Business Days after the Company is
obligated to make a Prepayment Offer as described in the
preceding paragraph, the Company shall send a written notice,
by first-class mail, to the Holders of Securities, accompanied
by information regarding the Company and its Subsidiaries as
the Company in good faith believes will enable the Holders to
make an informed decision with respect to that Prepayment
Offer. The notice shall state, among other things, the
purchase price and the purchase date, which shall be, subject
to any contrary requirements of applicable law, a Business Day
no earlier than 30 days nor later than 60 days from the date
the notice is mailed.
(2) Not later than the date upon which written notice of
a Prepayment Offer is delivered to the Trustee as provided
above, the Company shall deliver to the Trustee an Officers'
Certificate as to (i) the amount of the Prepayment Offer (the
"Offer Amount"), (ii) the allocation of the Net Available Cash
from the Asset Sales pursuant to which such Prepayment Offer
is
61
being made and (iii) the compliance of such allocation with
the provisions of Section 4.07(b). On or before the Purchase
Date, the Company shall also irrevocably deposit with the
Trustee or with the Paying Agent (or, if the Company or a
Wholly Owned Subsidiary is the Paying Agent, shall segregate
and hold in trust) in Temporary Cash Investments (other than
in those enumerated in clause (b) of the definition of
Temporary Cash Investments), maturing on the last day prior to
the Purchase Date or on the Purchase Date if funds are
immediately available by open of business, an amount equal to
the Offer Amount to be held for payment in accordance with the
provisions of this Section. Upon the expiration of the period
for which the Prepayment Offer remains open (the "Offer
Period"), the Company shall deliver to the Trustee for
cancellation the Securities or portions thereof that have been
properly tendered to and are to be accepted by the Company.
The Trustee or the Paying Agent shall, on the Purchase Date,
mail or deliver payment to each tendering Holder in the amount
of the purchase price. In the event that the aggregate
purchase price of the Securities delivered by the Company to
the Trustee is less than the Offer Amount, the Trustee or the
Paying Agent shall deliver the excess to the Company
immediately after the expiration of the Offer Period for
application in accordance with this Section.
(3) Holders electing to have a Security purchased shall
be required to surrender the Security, with an appropriate
form duly completed, to the Company or its agent at the
address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to
withdraw their election if the Trustee or the Company receives
not later than one Business Day prior to the Purchase Date, a
telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the
Security that was delivered for purchase by the Holder and a
statement that such ▇▇▇▇▇▇ is withdrawing its election to have
such Security purchased. If at the expiration of the Offer
Period the aggregate principal amount of Securities
surrendered by Holders exceeds the Offer Amount, the Company
shall select the Securities to be purchased on pro rata basis
for all Securities, (with such adjustments as may be deemed
appropriate by the Company so that only Securities in
denominations of $1,000, or integral multiples thereof, shall
be purchased). Holders whose Securities are purchased only in
part shall be issued new Securities equal in
62
principal amount to the unpurchased portion of the Securities
surrendered.
(4) At the time the Company delivers Securities to the
Trustee that are to be accepted for purchase, the Company
shall also deliver an Officers' Certificate stating that such
Securities are to be accepted by the Company pursuant to and
in accordance with the terms of this Section. A Security shall
be deemed to have been accepted for purchase at the time the
Trustee or the Paying Agent mails or delivers payment therefor
to the surrendering Holder.
(e) The Company will comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of
Securities pursuant to the covenant described hereunder. To the extent
that the provisions of any securities laws or regulations conflict with
provisions of the covenant described hereunder, the Company will comply
with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the covenant described
hereunder by virtue thereof.
SECTION 4.08. Limitation on Restrictions on Distributions from
------------------------------------------------
Restricted Subsidiaries. The Company shall not, and shall not permit any
------------------------
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist any consensual restriction on the right of any Restricted
Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock, or pay any Debt or
other obligation owed, to the Company or any other Restricted
Subsidiary,
(b) make any loans or advances to the Company or any other
Restricted Subsidiary or
(c) transfer any of its Property to the Company or any other
Restricted Subsidiary. The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), to
restrictions:
(A) in effect on the Issue Date,
(B) relating to Debt of a Restricted
Subsidiary and existing at the time it became
63
a Restricted Subsidiary if such restriction was not
created in connection with or in anticipation of the
transaction or series of transactions pursuant to
which that Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Company,
(C) that result from the Refinancing of Debt
Incurred pursuant to an agreement referred to in
clause (1)(A) or (B) above or in clause (2)(A) or (B)
below, provided that restriction is no less favorable
to the Holders of Securities than those under the
agreement evidencing the Debt so Refinanced, or
(D) resulting from the Incurrence of any
Permitted Debt described in clause (b) of the second
paragraph of Section 4.04, provided that the
restriction is no less favorable to the Holders of
Securities than the restrictions of the same type
contained in the Indenture, and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be
Incurred and secured without also securing the notes
pursuant to Section 4.04 and Section 4.06 that limit
the right of the debtor to dispose of the Property
securing that Debt,
(B) encumbering Property at the time the
Property was acquired by the Company or any
Restricted Subsidiary, so long as the restriction
relates solely to the Property so acquired and was
not created in connection with or in anticipation of
the acquisition,
(C) resulting from customary provisions
restricting subletting or assignment of leases or
customary provisions in other agreements (including,
without limitation, intellectual property licenses
entered into in the ordinary course of business) that
restrict assignment of the agreements or rights
thereunder, or
64
(D) which are customary restrictions
contained in asset sale agreements limiting the
transfer of Property pending the closing of the sale.
SECTION 4.09. Limitation on Transactions with Affiliates. The
------------------------------------------
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, conduct any business or enter into or suffer to exist any
transaction or series of transactions (including the purchase, sale, transfer,
assignment, lease, conveyance or exchange of any Property or the rendering of
any service) with, or for the benefit of, any Affiliate of the Company (an
"Affiliate Transaction"), unless:
(a) the terms of such Affiliate Transaction are:
(1) set forth in writing, and
(2) no less favorable to the Company or that Restricted
Subsidiary, as the case may be, than those that could be
obtained in a comparable arm's-length transaction with a
Person that is not an Affiliate of the Company, and
(b) if the Affiliate Transaction involves aggregate payments
or value in excess of $10.0 million, the Board of Directors (including
a majority of the disinterested members of the Board of Directors)
approves the Affiliate Transaction and, in its good faith judgment,
believes that the Affiliate Transaction complies with clauses (a)(1)
and (2) of this paragraph as evidenced by a Board Resolution promptly
delivered to the trustee.
Notwithstanding the foregoing limitation, the Company or any Restricted
Subsidiary may enter into or suffer to exist the following:
(a) any transaction or series of transactions between the
Company and one or more Restricted Subsidiaries or between two or more
Restricted Subsidiaries in the ordinary course of business, provided
that no more than 5% of the total voting power of the Voting Stock (on
a fully diluted basis) of any such Restricted Subsidiary is owned by an
Affiliate of the Company (other than a Restricted Subsidiary);
(b) any Restricted Payment permitted to be made pursuant to
Section 4.05 or any Permitted Investment;
65
(c) the payment of compensation (including amounts paid
pursuant to employee benefit plans) for the personal services of
officers, directors and employees of the Company or any of the
Restricted Subsidiaries, so long as, in the case of officers and
directors, the Board of Directors in good faith shall have approved the
terms thereof and deemed the services theretofore or thereafter to be
performed for the compensation to be fair consideration therefor;
(d) loans and advances to employees made in the ordinary
course of business and consistent with the past practices of the
Company or that Restricted Subsidiary, as the case may be, provided
that those loans and advances do not exceed $5.0 million in the
aggregate at any one time outstanding;
(e) any transaction effected as part of a Qualified
Receivables Transaction or any transaction involving the transfer of
accounts receivable of the type specified in the definition of "Credit
Facility" and permitted under clause (b) of the second paragraph of
Section 4.04; and
(f) the Existing Policies or any transaction contemplated
thereby.
SECTION 4.10. Designation of Restricted and Unrestricted
------------------------------------------
Subsidiaries. The Board of Directors may designate any Subsidiary of the Company
------------
to be an Unrestricted Subsidiary if:
(a) the Subsidiary to be so designated does not own any
Capital Stock or Debt of, or own or hold any Lien on any Property of,
the Company or any other Restricted Subsidiary, and
(b) any of the following:
(1) the Subsidiary to be so designated has total assets
of $1,000 or less,
(2) if the Subsidiary has consolidated assets greater
than $1,000, then the designation would be permitted under
Section 4.05, or
(3) the designation is effective immediately upon the
entity becoming a Subsidiary of the Company.
66
Unless so designated as an Unrestricted Subsidiary, any Person that becomes a
Subsidiary of the Company will be classified as a Restricted Subsidiary;
provided, however, that the Subsidiary shall not be designated a Restricted
-------- -------
Subsidiary and shall be automatically classified as an Unrestricted Subsidiary
if either of the requirements set forth in clauses (x) and (y) of the second
immediately following paragraph will not be satisfied after giving pro forma
effect to the classification or if the Person is a Subsidiary of an Unrestricted
Subsidiary.
Except as provided in the first sentence of the preceding
paragraph, no Restricted Subsidiary may be redesignated as an Unrestricted
Subsidiary. In addition, neither the Company nor any Restricted Subsidiary shall
at any time be directly or indirectly liable for any Debt that provides that the
holder thereof may (with the passage of time or notice or both) declare a
default thereon or cause the payment thereof to be accelerated or payable prior
to its Stated Maturity upon the occurrence of a default with respect to any
Debt, Lien or other obligation of any Unrestricted Subsidiary in existence and
classified as an Unrestricted Subsidiary at the time the Company or the
Restricted Subsidiary is liable for that Debt (including any right to take
enforcement action against that Unrestricted Subsidiary).
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary if, immediately after giving pro forma
effect to the designation,
(x) the Company could Incur at least $1.00 of additional Debt
pursuant to clause (1) of the first paragraph of Section 4.04, and
(y) no Default or Event of Default shall have occurred and be
continuing or would result therefrom.
Any designation or redesignation of this kind by the Board of
Directors will be evidenced to the Trustee by filing with the Trustee a Board
Resolution giving effect to the designation or redesignation and an Officers'
Certificate that:
(a) certifies that the designation or redesignation complies
with the foregoing provisions, and
(b) gives the effective date of the designation or
redesignation, and the filing with the Trustee to occur
67
within 45 days after the end of the fiscal quarter of the Company in
which the designation or redesignation is made (or, in the case of a
designation or redesignation made during the last fiscal quarter of the
Company's fiscal year, within 90 days after the end of that fiscal
year).
SECTION 4.11. Limitation on Sale and Leaseback Transactions.
----------------------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary to, enter
into any Sale and Leaseback Transaction with respect to any Property unless:
(a) the Company or that Restricted Subsidiary would be
entitled to:
(1) Incur Debt in an amount equal to the Attributable
Debt with respect to that Sale and Leaseback Transaction
pursuant to Section 4.04, and
(2) create a Lien on the Property securing that
Attributable Debt without also securing the Securities
pursuant to Section 4.06, and
(b) the Sale and Leaseback Transaction is effected in
compliance with Section 4.07.
SECTION 4.12. Change of Control.
-----------------
(a) Upon the occurrence of a Change of Control, each Holder of
Securities shall have the right to require the Company to repurchase
all or any part of such Holder's Securities pursuant to the offer
described below (the "Change of Control Offer") at a purchase price
(the "Change of Control Purchase Price") equal to 101.0% of the
principal amount thereof, plus accrued and unpaid interest, if any, to
the purchase date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest
payment date).
(b) Within 30 days following any Change of Control, the
Company shall (i) cause a notice of the Change of Control Offer to be
sent at least once to the Dow ▇▇▇▇▇ News Service or similar business
news service in the United States and (ii) send, by first-class mail,
with a copy to the Trustee, to each Holder of Securities, at such
Holder's address appearing in the Security Register, a notice stating:
(A) that a Change of Control Offer is being made pursuant to this
Section 4.12 and that all Securities timely tendered will be accepted
for payment; (B) the Change of Control Purchase Price and the purchase
date, which shall be, subject to any contrary requirements of
applicable law,
68
a Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed (the "Change of Control Payment Date"); (C)
the circumstances and relevant facts regarding the Change of Control
(including information with respect to pro forma historical income,
cash flow and capitalization after giving effect to the Change of
Control); and (D) the procedures that Holders of Securities must follow
in order to tender their Securities (or portions thereof) for payment
and the procedures that Holders of Securities must follow in order to
withdraw an election to tender Securities (or portions thereof) for
payment.
(c) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly
completed, to the Company or its agent at the address specified in the
notice at least three Business Days prior to the Change of Control
Payment Date. Holders shall be entitled to withdraw their election if
the Trustee or the Company receives not later than one Business Day
prior to the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Security that was delivered for purchase by
the Holder and a statement that such ▇▇▇▇▇▇ is withdrawing its election
to have such Security purchased.
(d) On or prior to the Change of Control Payment Date, the
Company shall irrevocably deposit with the Trustee or with the Paying
Agent (or, if the Company or any of its Wholly Owned Subsidiaries is
acting as the Paying Agent, segregate and hold in trust) in cash an
amount equal to the Change of Control Purchase Price payable to the
Holders entitled thereto, to be held for payment in accordance with the
provisions of this Section. On the Change of Control Payment Date, the
Company shall deliver to the Trustee the Securities or portions thereof
that have been properly tendered to and are to be accepted by the
Company for payment. The Trustee or the Paying Agent shall, on the
Change of Control Payment Date, mail or deliver payment to each
tendering Holder of the Change of Control Purchase Price. In the event
that the aggregate Change of Control Purchase Price is less than the
amount delivered by the Company to the Trustee or the Paying Agent, the
Trustee or the Paying Agent, as the case may be, shall deliver the
excess to the Company immediately after the Change of Control Payment
Date.
(e) The Company will comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the purchase of
Securities pursuant to this
69
Section. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section, the Company
will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section
by virtue thereof.
SECTION 4.13. Further Instruments and Acts. Upon request of
------------------------------
the Trustee, the Company shall execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE V
Successor Company
-----------------
SECTION 5.01. (a) When Company May Merge or Transfer Assets.
------------------------------------------
The Company shall not merge, consolidate or amalgamate with or into any other
Person (other than a merger of a Wholly Owned Restricted Subsidiary into the
Company) or sell, transfer, assign, lease, convey or otherwise dispose of all or
substantially all its Property in any one transaction or series of transactions
unless:
(a) the Company shall be the surviving Person (the "Surviving
Person") or the Surviving Person (if other than the Company) formed by
that merger, consolidation or amalgamation or to which that sale,
transfer, assignment, lease, conveyance or disposition is made shall be
a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia;
(b) the Surviving Person (if other than the Company) expressly
assumes, by supplemental indenture in form satisfactory to the Trustee,
executed and delivered to the Trustee by that Surviving Person, the due
and punctual payment of the principal of, and premium, if any, and
interest on, all the Securities, according to their tenor, and the due
and punctual performance and observance of all the covenants and
conditions of the Indenture to be performed by the Company;
70
(c) in the case of a sale, transfer, assignment, lease,
conveyance or other disposition of all or substantially all the
Property of the Company, that Property shall have been transferred as
an entirety or virtually as an entirety to one Person;
(d) immediately before and after giving effect to that
transaction or series of transactions on a pro forma basis (and
treating, for purposes of this clause (d) and clause (e) below, any
Debt that becomes, or is anticipated to become, an obligation of the
Surviving Person or any Restricted Subsidiary as a result of that
transaction or series of transactions as having been Incurred by the
Surviving Person or the Restricted Subsidiary at the time of that
transaction or series of transactions), no Default or Event of Default
shall have occurred and be continuing;
(e) immediately after giving effect to that transaction or
series of transactions on a pro forma basis, the Company or the
Surviving Person, as the case may be, would be able to Incur at least
$1.00 of additional Debt under clause (1) of the first paragraph of
Section 4.04, provided, however, that this clause (e) shall not be
-------- -------
applicable to the Company merging, consolidating or amalgamating with
or into an Affiliate incorporated solely for the purpose of
reincorporating the Company in another State of the United States so
long as the amount of Debt of the Company and the Restricted
Subsidiaries is not increased thereby;
(f) the Company shall deliver, or cause to be delivered, to
the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each
stating that the transaction and the supplemental indenture, if any, in
respect thereto comply with this covenant and that all conditions
precedent herein provided for relating to the transaction have been
satisfied; and
(g) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of the
transaction and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if that transaction had not occurred.
71
The Surviving Person shall succeed to, and be substituted for,
and may exercise every right and power of the Company under the Indenture, but
the predecessor Company in the case of:
(a) a sale, transfer, assignment, conveyance or other
disposition (unless that sale, transfer, assignment, conveyance or
other disposition is of all the assets of the Company as an entirety or
virtually as an entirety), or
(b) a lease, shall not be released from any obligation to pay
the principal of, premium, if any, and interest on, the Securities.
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. The following events shall
-----------------
be "Events of Default":
(1) the Company defaults in any payment of interest on
any Security when the same becomes due and payable, and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal
of any Security when the same becomes due and payable at its
Stated Maturity, upon acceleration, redemption, optional
redemption, required repurchase or otherwise;
(3) the Company fails to comply with Article 5;
(4) the Company fails to comply with any covenant or
agreement in the Securities or in this Indenture (other than a
failure that is the subject of the foregoing clause (1), (2)
or (3)) and such failure continues for 30 days after written
notice is given to the Company as specified below;
(5) a default under any Debt by the Company or any
Restricted Subsidiary that results in acceleration of the
maturity of that Debt, or failure to pay any such Debt at
maturity, in an aggregate amount greater than $25.0 million or
its foreign currency equivalent at the time;
72
(6) the Company or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for
relief against it in an involuntary case;
(C) consents to the appointment of a
Custodian of it or for any substantial part of its
property; or
(D) makes a general assignment for the
benefit of its creditors;
or takes any comparable action under any foreign laws relating
to insolvency;
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or
any Significant Subsidiary or for any substantial
part of its property; or
(C) orders the winding up or liquidation of
the Company or any Significant Subsidiary; or
(D) grants any similar relief under any
foreign laws;
and in each such case the order or decree remains unstayed and
in effect for 30 days; or
(8) any judgment or judgments for the payment of money in
an aggregate amount in excess of $25.0 million, or its foreign
currency equivalent at the time, that shall be rendered
against the Company or any Restricted Subsidiary and shall not
be waived, satisfied or discharged for any period of 30
consecutive days during which a stay of enforcement shall not
be in effect.
73
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code,
------------------
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (4) is not an Event of Default until
the Trustee or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding notify the Company (and in the case of such notice
by Holders, the Trustee) of the Default and the Company does not cure that
Default within the time specified after receipt of such notice. The notice must
specify the Default, demand that it be remedied and state that such notice is a
"Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default and any event that with the giving of notice or the
lapse of time would become an Event of Default, its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default with
------------
respect to any of the Securities (other than an Event of Default specified in
Section 6.01(6) or (7) with respect to the Company) shall have occurred and be
continuing, the Trustee or the registered Holders of not less than 25% in
aggregate principal amount of the Securities then outstanding may, by notice to
the Company and the Trustee, declare to be immediately due and payable the
principal amount of all the applicable Securities then outstanding, plus accrued
but unpaid interest to the date of acceleration. Upon such a declaration, such
principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(6) or (7) with respect to the Company occurs,
the principal of and accrued and unpaid interest on all the Securities shall be
due and payable immediately without any declaration or other act by the Trustee
or the Holder of the Securities. After any such acceleration but before a
judgment or decree based on acceleration is obtained by the Trustee, the Holders
of a majority in aggregate principal amount of the outstanding
74
Securities by notice to the Trustee and the Company may rescind any declaration
of acceleration if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs
---------------
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
-------------------------
majority in aggregate principal amount of the Securities then outstanding by
notice to the Trustee may waive an existing Default and its consequences except
(i) a Default in the payment of the principal of or interest on a Security or
(ii) a Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Securityholder affected. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent
or other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority
-------------------
in aggregate principal amount of the Securities then outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Securities. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.01,
that the Trustee determines is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability; provided,
--------
however, that the Trustee may take any other action deemed proper by the Trustee
-------
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to
75
reasonable indemnification against all losses and expenses caused by taking or
not taking such action.
SECTION 6.06. Limitation on Suits. A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:
(1) such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding shall have made a
written request, and such Holder or Holders shall have offered
reasonable indemnity, to the Trustee to pursue such proceeding
as trustee; and
(3) the Trustee has failed to institute such proceeding
and has not received from the Holders of at least a majority
in aggregate principal amount of the Securities outstanding a
direction inconsistent with such request, within 60 days after
such notice, request and offer.
The foregoing limitations on the pursuit of remedies by a
Securityholder shall not apply to a suit instituted by a Holder of Securities
for the enforcement of payment of the principal of, and premium, if any, or
interest on such Security on or after the applicable due date specified in such
Security. A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment.
-------------------------------------------
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
----------------------------
Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
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SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
--------------------------------
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.07.
SECTION 6.10. Priorities. If the Trustee collects any money
----------
or property pursuant to this Article 6, it shall pay out the money or property
in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the Trustee
a notice that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
-----------------------
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and
77
good faith of the claims or defenses made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in aggregate principal amount of the
Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company
---------------------------------
(to the extent it may lawfully do so) shall not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and shall not hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE VII
Trustee
-------
SECTION 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as
a prudent Person would exercise or use under the circumstances in the
conduct of such ▇▇▇▇▇▇'s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture but need not confirm or
78
investigate the accuracy of any mathematical calculations or
other facts stated therein.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of
any of its rights or powers.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section and to the
provisions of the TIA and the provisions of this Article VII shall
apply to the Trustee in its role as Registrar, Paying Agent and
Security Custodian.
(i) The Trustee shall not be deemed to have notice of a
Default or an Event of Default unless (a) the Trustee has received
written notice thereof from the Company
79
or any Holder or (b) a Trust Officer shall have actual knowledge
thereof.
SECTION 7.02. Rights of Trustee.
-------------------
(a) The Trustee may conclusively rely on any document (whether
in its original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document. The Trustee
may, however, in its discretion make such further inquiry or
investigation into such facts or matters as it may see fit and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at the expense of the
Company and shall incur no liability or additional liability of any
kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within
its rights or powers; provided, however, that the Trustee's conduct
-------- -------
does not constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of counsel with respect to legal matters relating
to this Indenture and the Securities shall be full and complete
authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty unless so
specified herein.
(g) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to
80
the Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
----------------------------
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar or
co-registrar may do the same with like rights. However, the Trustee must comply
with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
---------------------
responsible for and makes no representation as to the validity, priority or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company in this Indenture or in any
document issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default or Event of
-------------------
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to each Securityholder notice of the Default or Event of Default
within 90 days after it is known to a Trust Officer or written notice of it is
received by the Trustee. Except in the case of a Default or Event of Default in
payment of principal of or interest on any Security, the Trustee may withhold
the notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
-----------------------------
practicable after each December 31 beginning with December 31, 2000, and in any
event prior to March 31 in each year, the Trustee shall mail to each
Securityholder a brief report dated as of December 31 each year that complies
with TIA ss. 313(a), if and to the extent required by such subsection. The
Trustee shall also comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
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SECTION 7.07. Compensation and Indemnity. The Company shall
---------------------------
pay to the Trustee from time to time reasonable compensation for its services.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and all loss,
liability or expense (including reasonable attorneys' fees) incurred by it in
connection with the acceptance and administration of this trust and the
performance of its duties hereunder except to the extent that the Company shall
have been actually prejudiced as a result of such failure. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company
of its obligations hereunder. The Company shall defend the claim and the
Trustee may have separate counsel and the Company shall pay the fees and
expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee
through the Trustee's own wilful misconduct, negligence or bad faith. The
Company need not pay for any settlement made by the Trustee without the
Company's consent, such consent not to be unreasonably withheld. All
indemnifications and releases from liability granted hereunder to the Trustee
shall extend to its officers, directors, employees, agents, successors and
assigns.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the resignation or removal of the Trustee and the discharge of
this Indenture. When the Trustee incurs expenses after the occurrence of a
Default specified in Section 6.01(6) or (7) with respect to the Company, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
----------------------
at any time by so notifying the Company. The Holders of a majority in aggregate
principal amount of the Securities then outstanding may remove the Trustee by so
82
notifying the Trustee and may appoint a successor Trustee. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in aggregate principal amount of the Securities then
outstanding and such Holders do not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the
Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in aggregate principal amount of the Securities then outstanding
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder who has been a bona fide Holder of a Security for at least six
months may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
83
SECTION 7.09. Successor Trustee by ▇▇▇▇▇▇. If the Trustee
----------------------------
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any such successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
-----------------------------
at all times satisfy the requirements of TIA ss. 310(a). The Trustee shall have
(or, in the case of a corporation included in a bank holding company system, the
related bank holding company shall have) a combined capital and surplus of at
least $50,000,000 as set forth in its (or its related bank holding company's)
most recent published annual report of condition. The Trustee shall comply with
TIA ss. 310(b), subject to the penultimate paragraph thereof; provided, however,
-------- -------
that there shall be excluded from the operation of TIA ss. 310(b)(1) any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA ss. 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
---------------------------------------------
Company. The Trustee shall comply with TIA ss. 311(a), excluding any creditor
-------
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
----------------------------------
84
SECTION 8.01. Discharge of Liability on Securities; Defeasance.
-------------------------------------------------
(a) When (i) the Company delivers to the Trustee all
outstanding Securities (other than Securities replaced pursuant to
Section 2.07) for cancellation or (ii) all outstanding Securities have
become due and payable, whether at maturity or as a result of the
mailing of a notice of redemption pursuant to Article III and the
Company irrevocably deposits with the Trustee funds sufficient to pay
at maturity or upon redemption all outstanding Securities, including
interest thereon to maturity or such redemption date (other than
Securities replaced pursuant to Section 2.07), and if in either case
the Company pays all other sums payable hereunder by the Company, then
this Indenture shall, subject to Section 8.01(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and
expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any
time may terminate (i) all of its obligations under the Securities and
this Indenture ("legal defeasance option") or (ii) its obligations
under Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11,
and 4.12 and the operation of Sections 6.01(5), 6.01(6), 6.01(7) and
6.01(8) (but, in the case of Sections 6.01(6) and (7), with respect
only to Significant Subsidiaries) and the limitations contained in
clause (e) of Article 5 ("covenant defeasance option"). The Company may
exercise its legal defeasance option notwithstanding its prior exercise
of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of
Default specified in Sections 6.01(4) (with respect to the covenants of
Article IV identified in the immediately preceding paragraph), 6.01(5),
6.01(6), 6.01(7) or 6.01(8) (with respect only to Significant
Subsidiaries in the case of Sections 6.01(6) and 6.01(7)) or because of
the failure of the Company to comply with the limitations contained in
clause (e) of Article 5.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the
discharge of those obligations that the Company terminates.
85
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.05 and
8.06 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07 and 8.05 shall
survive such satisfaction or discharge.
SECTION 8.02. Conditions to Defeasance. The Company
---------------------------
may exercise its legal defeasance option or its covenant defeasance option
only if:
(1) the Company irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations for the payment
of principal of and interest on the Securities to maturity or
redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate
from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and
interest when due and without reinvestment on the deposited
U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts
as will be sufficient to pay principal and interest when due
on all the Securities to maturity or redemption, as the case
may be;
(3) 123 days pass after the deposit is made and during
the 123-day period no Default specified in Section 6.01(6) or
(7) occurs with respect to the Company or any other Person
making the deposit that is continuing at the end of the
period;
(4) the deposit does not constitute a default under any
other agreement or instrument binding on the Company;
(5) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the
deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (ii) since the
86
date of this Indenture there has been a change in the
applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall
confirm that, the Securityholders will not recognize income,
gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred;
(7) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Security-holders will not
recognize income, gain or loss for Federal income tax purposes
as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant
defeasance had not occurred; and
(8) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the
Securities as contemplated by this Article VIII have been
complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall
---------------------------
hold in trust money or U.S. Government Obligations deposited with it pursuant
to this Article VIII. It shall apply the deposited money and the money from
U.S. Government Obligations through the Paying Agent and in accordance with
this Indenture to the payment of principal of and interest on the Securities.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
--------------------
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors.
87
SECTION 8.05. Indemnity for Government Obligations. The
------------------------------------
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
-------------
unable to apply any money or U.S. Government Obligations in accordance with
this Article VIII by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that, if
-------- -------
the Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE IX
Amendments
----------
SECTION 9.01. Without Consent of Holders. The Company and
--------------------------
the Trustee may amend this Indenture or the Securities without notice to or
consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition
to or in place of certificated Securities; provided, however,
-------- -------
that the uncertificated Securities are issued in registered
form for purposes of Section 163(f) of the Code or in a manner
such that the uncertificated Securities are described in
Section 163(f)(2)(B) of the Code;
(4) to add Guarantees with respect to the Securities;
88
(5) to secure the Securities, to add to the covenants of
the Company for the benefit of the Holders or to surrender any
right or power herein conferred upon the Company;
(6) to comply with any requirements of the SEC in
connection with qualifying, or maintaining the qualification
of, this Indenture under the TIA;
(7) to make any change that does not adversely affect the
rights of any Securityholder; or
(8) to provide for the issuance of additional Securities
in accordance with the Indenture.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.02. With Consent of Holders. The Company and the
------------------------
Trustee may amend this Indenture or the Securities without notice to any
Securityholder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange
offer for the Securities). However, without the consent of each Securityholder
affected thereby, an amendment may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal of or extend the Stated Maturity
of any Security;
(4) impair the right of any Holder to receive payment of
principal of and interest on such ▇▇▇▇▇▇'s Securities on or
after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such ▇▇▇▇▇▇'s
Securities;
(5) reduce the amount payable upon the redemption or
repurchase of any Security under Article III or
89
Section 4.07 or 4.12, change the time at which any Security
may be redeemed in accordance with Article III, or, at any
time after a Change of Control or Asset Sale has occurred,
change the time at which any Change of Control Offer or
Prepayment Offer must be made or at which the Securities must
be repurchased pursuant to such Change of Control Offer or
Prepayment Offer;
(6) make any Security payable in money other than that
stated in the Security;
(7) release any security interest that may have been
granted in favor of the Holders other than pursuant to the
terms of the agreement granting that security interest;
(8) make any change in Section 6.04 or 6.07 or the second
sentence of this Section; or
(9) subordinate the Securities to any other obligation of
the Company
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly
describing such amendment. The failure to give such notice to
all Securityholders, or any defect therein, shall not impair
or affect the validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every
-------------------------------------
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
---------------------------------------------
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver becomes effective
90
upon the execution of such amendment or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
-------------------------------------
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver such Security to the Trustee. The Trustee may place an
appropriate notation on the Security regarding the changed terms and return such
Security to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Failure to
make the appropriate notation or to issue a new Security shall not affect the
validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
---------------------------
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Company nor any
-------------------
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
91
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Trust Indenture Act Controls. If any provision
----------------------------
of this Indenture limits, qualifies or conflicts with another provision that is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 10.02. Notices. Any notice or communication shall be
-------
in writing and delivered in person or mailed by first-class mail or sent by
facsimile (with a hard copy delivered in person or by mail promptly thereafter)
and addressed as follows:
if to the Company:
Levi ▇▇▇▇▇▇▇ & Co. ▇▇▇▇'s Plaza ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention of: Legal Department
if to the Trustee:
Citibank, N.A.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of: Citibank Agency and Trust Services
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration
92
books of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 10.03. Communication by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions
---------------------------------------------
Precedent. Upon any request or application by the Company to the Trustee to take
---------
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that, in the
opinion of such counsel, all such conditions precedent have
been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
93
(3) a statement that, in the opinion of such individual,
he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such individual, such covenant or condition has been complied
with.
SECTION 10.06. When Securities Disregarded. In determining
-----------------------------
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall be disregarded and
deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities that the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities outstanding at the
time shall be considered in any such determination.
SECTION 10.07. Rules by Trustee, Paying Agent and Registrar.
---------------------------------------------
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent or co-registrar may make
reasonable rules for their functions.
SECTION 10.08. Legal Holidays. A "Legal Holiday" is a
---------------
Saturday, a Sunday or a day on which banking institutions are not required to be
open in the State of New York. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
SECTION 10.09. Governing Law. THIS INDENTURE AND THE
---------------
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 10.10. No Recourse Against Others. A director,
--------------------------
officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
94
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
SECTION 10.11. Successors. All agreements of the Company
----------
in this Indenture and the Securities shall bind its successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 10.12. Multiple Originals. The parties may sign any
------------------
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 10.13. Table of Contents; Headings. The table of
-----------------------------
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
95
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
LEVI ▇▇▇▇▇▇▇ & CO.,
by
----------------------------------------
Name:
Title:
CITIBANK, N.A.,
by
----------------------------------------
Name:
Title:
APPENDIX A
PROVISIONS RELATING TO INITIAL SECURITIES
-----------------------------------------
AND EXCHANGE SECURITIES
-----------------------
1. Definitions
-----------
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Clearstream" means Clearstream Banking, S.A., formerly known as
Cedel Bank, S.A., or any successor securities clearing agency.
"Definitive Security" means a certificated Initial Security or
Exchange Security or Private Exchange Security bearing, if required, the
restricted securities legend set forth in Section 2.3(d).
"Depository" means The Depository Trust Company, its nominees and
their respective successors.
"Distributed Compliance Period", with respect to any Securities,
means the period of 40 consecutive days beginning on and including the later of
(i) the day on which such Securities are first offered to persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S and (ii) the Issue Date with respect to such Securities.
"Exchange Securities" means the 11 5/8% Senior Notes due 2008 to
be issued pursuant to the Indenture in connection with a Registered Exchange
Offer pursuant to the Registration Agreement.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York
(Brussels office) as operator of the Euroclear Clearance System or any successor
securities clearing agency.
"Euro Notes" means the Company's 11 5/8% Senior Notes due 2008
denominated in euros and issued pursuant to an indenture dated the date hereof
between the Company and Citibank, N.A. as trustee.
"IAI" means an institutional "accredited investor" as described
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
2
"Initial Purchasers" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Banc of
America Securities LLC, Scotia Capital (USA) Inc., Chase Securities Inc. and
Banc One Capital Markets, Inc.
"Initial Securities" means the 11 5/8% Senior Notes due 2008, to
be issued from time to time, in one or more series as provided for in this
Indenture.
"Issue Date Euro Notes" means Euro Notes issued on the first date
on which the Euro Notes are initially issued.
"Original Securities" means Initial Securities in the aggregate
principal amount of $380.0 million issued on January 18, 2001.
"Private Exchange" means the offer by the Company, pursuant to
Section 2 of the Registration Agreement dated January 18, 2001, or pursuant to
any similar provision of any other Registration Agreement, to issue and deliver
to certain purchasers, in exchange for the Initial Securities held by such
purchasers as part of their initial distribution, a like aggregate principal
amount of Private Exchange Securities.
"Private Exchange Securities" means the 11 5/8% Senior Notes due
2008 to be issued pursuant to this Indenture in connection with a Private
Exchange pursuant to a Registration Agreement.
"Purchase Agreement" means the Purchase Agreement dated January
12, 2001, among the Company and the Initial Purchasers relating to the Original
Securities, or any similar agreement relating to any future sale of Initial
Securities by the Company.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registered Exchange Offer" means the offer by the Company,
pursuant to a Registration Agreement, to certain Holders of Initial Securities,
to issue and deliver to such Holders, in exchange for the Initial Securities, a
like aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Agreement" means the Registration Rights Agreement
dated January 18, 2001, among the Company and the Initial Purchasers relating to
the Original Securities, or any similar agreement relating to any additional
Initial Securities.
3
"Rule 144A Securities" means all Initial Securities offered and
sold to QIBs in reliance on Rule 144A.
"Securities" means the Initial Securities and the Exchange
Securities, treated as a single class.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depository) or any successor person
thereto, who shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement
issued by the Company in connection with the offer and sale of Initial
Securities or Private Exchange Securities pursuant to the Registration
Agreement.
"Transfer Restricted Securities" means Definitive Securities and
any other Securities that bear or are required to bear the legend set forth in
Section 2.3(d) hereto.
"U.S. Dollar Equivalent" means with respect to any monetary
amount in a currency other than U.S. dollars, at any time for determination
thereof, the amount of U.S. dollars obtained by converting such foreign currency
involved in such computation into U.S. dollars at the spot rate for the purchase
of U.S. dollars with the applicable foreign currency as published in THE WALL
STREET JOURNAL in the "Exchange Rates" column under the heading "Currency
Trading" on the date two Business Days prior to such determination. In
determining the aggregate principal amount of Euro Notes outstanding, such
amount will be treated as the U.S. Dollar Equivalent determined as of the date
of issuance of such Euro Notes.
1.2 Other Definitions
-----------------
Defined in
Term Section:
---- ----------
"Agent Members" 2.1(b)
"Global Security" 2.1(a)
"IAI Global Security" 2.1(a)
"Regulation S" 2.1
"Rule 144A" 2.1
"Rule 144A Global Security" 2.1(a)
"Regulation S Global Security" 2.1(a)
4
2. The Securities
--------------
2.1 Form and Dating
---------------
The Initial Securities will be offered and sold by the
Company, from time to time, pursuant to one or more Purchase Agreements. The
Initial Securities will be resold initially only to QIBs in reliance on Rule
144A under the Securities Act ("Rule 144A") and in reliance on Regulation S
under the Securities Act ("Regulation S"). Initial Securities may thereafter be
transferred to, among others, QIBs, purchasers in reliance on Regulation S and
IAIs under Rule 501(a)(1), (2), (3) or (7) under the Securities Act, subject to
the restrictions on transfer set forth herein.
(a) Global Securities. Initial Securities initially resold
------------------
pursuant to Rule 144A shall be issued initially in the form of one or more
permanent global Securities in definitive, fully registered form (collectively,
the "Rule 144A Global Security"), Initial Securities initially resold pursuant
to Regulation S shall be issued initially in the form of one or more global
securities (collectively, the "Regulation S Global Security") and, subject to
Section 2.4 hereof, Initial Securities transferred subsequent to the initial
resale thereof to IAIs shall be issued initially in the form of one or more
permanent global securities in definitive, fully registered form (collectively,
the "IAI Global Security"), in each case without interest coupons and with the
global securities legend and restricted securities legend set forth in Exhibit 1
hereto, which shall be deposited on behalf of the purchasers of the Initial
Securities represented thereby with the Securities Custodian, and registered in
the name of the Depository or a nominee of the Depository, duly executed by the
Company and authenticated by the Trustee as provided in this Indenture. The Rule
144A Global Security, IAI Global Security and Regulation S Global Security are
collectively referred to herein as "Global Securities." The aggregate principal
amount of the Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the Depository or its
nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply
----------------------
only to a Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b) and pursuant to an order of the Company, authenticate
and deliver initially one or more Global Securities that (a) shall be
registered in the name of
5
the Depository for such Global Security or Global Securities or the nominee of
such Depository and (b) shall be delivered by the Trustee to such Depository or
pursuant to such Depository's instructions or held by the Trustee as Securities
Custodian.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository or by the Trustee as Securities
Custodian or under such Global Security, and the Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of
a holder of a beneficial interest in any Global Security.
(c) Definitive Securities. Except as provided in Section
----------------------
2.3 or 2.4, owners of beneficial interests in Global Securities will not be
entitled to receive physical delivery of Definitive Securities.
2.2 Authentication. The Trustee shall authenticate and deliver: (1)
--------------
Original Securities for original issue in an aggregate principal amount of
$380.0 million, (2) additional Initial Securities, if and when issued, in an
aggregate principal amount of up to (x) $350.0 million less (y) the aggregate
principal amount (on a U.S. Dollar Equivalent basis) of any Euro Notes issued by
the Company that are not Issue Date Euro Notes, and (3) the Exchange Securities
or Private Exchange Securities for issue only in a Registered Exchange Offer or
a Private Exchange, respectively, pursuant to the Registration Agreement, for a
like principal amount of Initial Securities or Private Exchange Securities, as
applicable, upon a written order of the Company signed by two Officers or by an
Officer and either an Assistant Treasurer or an Assistant Secretary of the
Company. Such order shall specify the amount of the Securities to be
authenticated and the date on which the original issue of Securities is to be
authenticated and whether the Securities are to be Initial Securities or
Exchange Securities. The aggregate principal amount of Securities outstanding at
any time may not exceed (x) $850.0 million less (y) the aggregate principal
amount (on a U.S. Dollar Equivalent basis) of any Euro Notes issued by the
Company, except as provided in Section 2.08 of this Indenture.
6
2.3 Transfer and Exchange.
---------------------
(a) Transfer and Exchange of Definitive Securities. When
Definitive Securities are presented to the Registrar or a co-registrar
with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar or co-registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing; and
(ii) if such Definitive Securities bear a restricted
securities legend, they are being transferred or exchanged pursuant to
an effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are accompanied by the
following additional information and documents, as applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect; or
(B) if such Definitive Securities are being
transferred to the Company, a certification to that
effect; or
(C) if such Definitive Securities are being
transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act, (i) a
certification to that effect and (ii) if the Company so
requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the restrictions
set forth in the legend set forth in Section 2.3(d)(i).
7
(b) Transfer and Exchange of Global Securities.
------------------------------------------
(i) The transfer and exchange of Global Securities or
beneficial interests therein shall be effected through the Depository, in
accordance with this Indenture (including applicable restrictions on transfer
set forth herein, if any) and the procedures of the Depository therefor. A
transferor of a beneficial interest in a Global Security shall deliver a written
order given in accordance with the Depository's procedures containing
information regarding the participant account of the Depository to be credited
with a beneficial interest in the Global Security and such account shall be
credited in accordance with such instructions with a beneficial interest in the
Global Security and the account of the Person making the transfer shall be
debited by an amount equal to the beneficial interest in the Global Security
being transferred. In the case of a transfer of a beneficial interest in a
Global Security to an IAI, the transferee must furnish a signed letter to the
Trustee containing certain representations and agreements in the form of Exhibit
C hereto.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another Global
Security, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Security to which such interest
is being transferred in an amount equal to the principal amount of the interest
to be so transferred, and the Registrar shall reflect on its books and records
the date and a corresponding decrease in the principal amount of the Global
Security from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this
Appendix A (other than the provisions set forth in Section 2.4), a Global
Security may not be transferred as a whole except 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.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 prior to the consummation of a
Registered Exchange Offer or the effectiveness of a Shelf Registration Statement
with respect to such Securities, such Securities may be exchanged only in
accordance with such procedures as are substantially consistent with the
8
provisions of this Section 2.3 (including the certification requirements set
forth on the reverse of the Initial Securities intended to ensure that such
transfers comply with Rule 144A, Regulation S or such other applicable
exemption from registration under the Securities Act, as the case may be) and
such other procedures as may from time to time be adopted by the Company.
(c) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each certificate evidencing the Global Securities and the
Definitive Securities (and all Securities issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR
THE BENEFIT OF THE COMPANY THAT THIS NOTE MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF
(OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN AFFILIATE
OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH
TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS THIS NOTE
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER ON THE REVERSE OF THIS NOTE), (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
NOTE), (4) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
NOTE) THAT IS ACQUIRING THIS NOTE FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION, AND A CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR THE
TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND TRUSTEE, (5) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
(IF APPLICABLE) UNDER
9
THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR
HOLDING THIS NOTE AGREES THAT IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE
SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO
CONFIRM THAT ANY TRANSFER BY IT OF THIS NOTE COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES
FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR (2) PURCHASING FROM A PERSON NOT
PARTICIPATING IN THE INITIAL DISTRIBUTION OF THIS SECURITY (OR ANY PREDECESSOR
SECURITY), THAT IT IS AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS
HOLDING THIS NOTE FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A
NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT
SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2)(i) OF RULE 902 UNDER) REGULATION
S UNDER THE SECURITIES ACT."
Each Definitive Security will also bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act:
(A) in the case of any Transfer Restricted Security
that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security
for a Security that does not bear the legends set forth above
and rescind any restriction on the transfer of such Transfer
Restricted Security; and
(B) in the case of any Transfer Restricted Security
that is represented by a Global Security, the Registrar shall
permit the Holder thereof to exchange such Transfer Restricted
Security for a Security that does not bear the legends set
forth
10
above and rescind any restriction on the transfer of such
Transfer Restricted Security,
in either case, if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such certification
to be in the form set forth on the reverse of the Initial Security).
(iii) After a transfer of any Initial Securities or
Private Exchange Securities, as the case may be, during the period of the
effectiveness of a Shelf Registration Statement with respect to such Initial
Securities or Private Exchange Securities, all requirements pertaining to
restricted legends on such Initial Security or such Private Exchange Security
will cease to apply and an Initial Security or Private Exchange Security, as the
case may be, in global form without restricted legends will be available to the
transferee of the beneficial interests of such Initial Securities or Private
Exchange Securities. Upon the occurrence of any of the circumstances described
in this paragraph, the Company will deliver an Officers' Certificate to the
Trustee instructing the Trustee to issue Securities without restricted legends.
(iv) Upon the consummation of a Registered Exchange Offer
with respect to the Initial Securities pursuant to which certain Holders of such
Initial Securities are offered Exchange Securities in exchange for their Initial
Securities, Exchange Securities in global form without the restricted legends
will be available to Holders or beneficial owners that exchange such Initial
Securities (or beneficial interests therein) in such Registered Exchange Offer.
Upon the occurrence of any of the circumstances described in this paragraph, the
Company will deliver an Officers' Certificate to the Trustee instructing the
Trustee to issue Securities without restricted legends.
(d) Cancelation or Adjustment of Global Security. At such time
--------------------------------------------
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, repurchased or canceled, such Global Security
shall be returned by the Depository to the Trustee for cancelation or retained
and canceled by the Trustee. At any time prior to such cancelation, if any
beneficial interest in a Global Security is exchanged for Definitive Securities,
redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such
11
Global Security) with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
(e) Obligations with Respect to Transfers and Exchanges of
------------------------------------------------------
Securities.
----------
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive Securities
and Global Securities at the Registrar's or co-registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes, assessments or similar
governmental charge payable upon exchange or transfer pursuant to Sections 3.06,
4.08 and 9.05 of this Indenture).
(iii) The Registrar or co-registrar shall not be required
to register the transfer of or exchange of any Security for a period beginning
15 days before the mailing of a notice of redemption or an offer to repurchase
Securities or 15 days before an interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent, the
Registraror any co-registrar may deem and treat the person in whose name a
Security is registered as the absolute owner of such Security for the purpose
of receiving payment of principal of and interest on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and none
of the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt and shall
be entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a participant in the
Depository or any
12
other Person with respect to the accuracy of the records of the Depository or
its nominee or of any participant or member thereof, with respect to any
ownership interest in the Securities or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than the
Depository) of any notice (including any notice of redemption or repurchase) or
the payment of any amount, under or with respect to such Securities. All notices
and communications to be given to the Holders and all payments to be made to
Holders under the Securities shall be given or made only to the registered
Holders (which shall be the Depository or its nominee in the case of a Global
Security). The rights of beneficial owners in any Global Security shall be
exercised only through the Depository subject to the applicable rules and
procedures of the Depository. The Trustee may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Depository
participants, members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
2.4 Definitive Securities
---------------------
(a) A Global Security deposited with the Depository or with
the Trustee as Securities Custodian pursuant to Section 2.1 shall be transferred
to the beneficial owners thereof in the form of Definitive Securities in an
aggregate principal amount equal to the principal amount of such Global
Security, in exchange for such Global Security, only if such transfer complies
with Section 2.3 and (i) the Depository notifies the Company that it is
unwilling or unable to continue as a Depository for such Global Security or if
at any time the Depository ceases to be a "clearing agency" registered under the
Exchange Act, and a successor Depository is not appointed by the Company within
90 days of such notice, or (ii) a Default or an Event of Default has occurred
and is continuing or (iii) the Company, in its sole discretion,
13
notifies the Trustee in writing that it elects to cause the issuance of
Definitive Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section 2.4 shall be surrendered by the
Depository to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate
principal amount of Definitive Securities of authorized denominations.
Definitive Securities issued in exchange for any portion of a Global Security
transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple thereof and
registered in such names as the Depository shall direct. Any Definitive Security
delivered in exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.3(d), bear the restricted securities legend set
forth in Exhibit 1 hereto.
(c) The registered Holder of a Global Security may grant
proxies and otherwise authorize any Person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action that a Holder
is entitled to take under this Indenture or the Securities.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Company will promptly make
available to the Trustee a reasonable supply of Definitive Securities in
definitive, fully registered form without interest coupons.
EXHIBIT 1
to APPENDIX A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, 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 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
NOTE, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS NOTE MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE
ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT
WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING
THE DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN (1) TO THE COMPANY, (2) SO
LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS NOTE), (3) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS NOTE), (4) TO AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
(AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
2
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE
WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED BY THE
TRANSFEREE TO THE COMPANY AND TRUSTEE,(5) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR
HOLDING THIS NOTE AGREES THAT IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE
SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO
CONFIRM THAT ANY TRANSFER BY IT OF THIS NOTE COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES
FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR (2) PURCHASING FROM A PERSON NOT
PARTICIPATING IN THE INITIAL DISTRIBUTION OF THIS SECURITY (OR ANY PREDECESSOR
SECURITY), THAT IT IS AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS
HOLDING THIS NOTE FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A
NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT
SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2)(i) OF RULE 902 UNDER) REGULATION
S UNDER THE SECURITIES ACT.
[Definitive Securities Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
[FORM OF FACE OF INITIAL SECURITY]
No. [up to]3$__________
11 5/8% Senior Note due 2008
CUSIP No.[52736R AJ 1](1)
[U52799 AE 0](2)
ISIN No. [US52736RAJ14](1)
[USU52799AE03](2)
Common Code No. [012338678](1)
[012338732](2)
▇▇▇▇ ▇▇▇▇▇▇▇ & CO., a Delaware corporation, promises to pay to
[Cede & Co.]3, or registered assigns, the principal sum [of
_____________________Dollars]4 [as set forth on the Schedule of Increases or
Decreases annexed hereto](3)on January 15, 2008.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
__________________
1 Insert for Rule 144A Global Note.
2 Insert for Reg. S Global Note.
3 Insert for Global Securities.
4 Insert for Definitive Securities.
2
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
LEVI ▇▇▇▇▇▇▇ & CO.,
by
------------------------------------
Name:
Title:
by
------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated: January 18, 2001
CITIBANK, N.A.,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by:
------------------------------
Authorized Signatory
3
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
11 5/8% Senior Note due 2008
1. Interest
--------
(a) ▇▇▇▇ ▇▇▇▇▇▇▇ & CO., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
will pay interest semiannually on January 15 and July 15 of each year,
commencing July 15, 2001. Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from January 18, 2001. Interest shall be computed on the basis of a 360-day year
of twelve 30-day months. The Company shall pay interest on overdue principal at
the rate borne by the Securities plus 1% per annum, and it shall pay interest on
overdue installments of interest at the rate borne by the Securities to the
extent lawful.
(b) Special Interest. The holder of this Security is entitled
----------------
to the benefits of a Registration Rights Agreement, dated as of January 18,
2001, among the Company and the Purchasers named therein (the "Registration
Agreement"). Capitalized terms used in this paragraph (b) but not defined herein
have the meanings assigned to them in the Registration Agreement. In the event
that (i) neither the Exchange Offer Registration Statement nor the Shelf
Registration Statement has been filed with the Commission on or prior to the
60th day following the date of the original issuance of the Securities, (ii) the
Exchange Offer Registration Statement has not been declared effective on or
prior to the 120th day following the date of the original issuance of the
Securities, (iii) neither the Registered Exchange Offer has been consummated nor
the Shelf Registration Statement has been declared effective on or prior to the
150th day following the date of the original issuance of the Securities, or (iv)
after the Shelf Registration Statement has been declared effective, such
Registration Statement thereafter ceases to be effective or usable in connection
with resales of the Securities at any time that the Company is obligated to
maintain the effectiveness thereof pursuant to the Registration Agreement (each
such event referred to in clauses (i) through (iv) above being referred to
herein as a "Registration Default"), interest (the "Special Interest") shall
accrue (in addition to stated interest on the Securities) from and including the
date on which the first such Registration Default shall occur to but excluding
the date on which all Registration Defaults have
4
been cured, at a rate per annum equal to 0.25% of the principal amount of the
Securities; provided, however, that such rate per annum shall increase by 0.25%
-------- -------
per annum from and including the 91st day after the first such Registration
Default (and each successive 91st day thereafter) unless and until all
Registration Defaults have been cured; provided further, however, that in no
-------- ------- -------
event shall the Special Interest accrue at a rate in excess of 1.00% per annum.
The Special Interest will be payable in cash semiannually in arrears each
January 15 and July 15.
2. Method of Payment
-----------------
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders of Securities at
the close of business on the January 1 or July 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. Payments in respect of the
Securities represented by a Global Security (including principal, premium and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Company will make all
payments in respect of a Definitive Security (including principal, premium and
interest), by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in the case
-------- -------
of a Holder of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in
the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, CITIBANK, N.A., a banking association (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without notice. The Company
or any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
5
4. Indenture
---------
The Company issued the Securities under an Indenture dated as
of January 18, 2001 (the "Indenture"), between the Company and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
------
▇▇.▇▇. 77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement of
those terms.
The Securities are senior unsecured obligations of the Company
limited to an aggregate principal amount at any one time outstanding of (x)
$850.0 million less (y) the aggregate principal amount (on a U.S. Dollar
Equivalent basis) of any Euro Notes issued by the Company (subject to Sections
2.01 and 2.08 of the Indenture). [This Security is one of the Original
Securities referred to in the Indenture issued in an aggregate principal amount
of $380.0 million. The Securities include the Original Securities, additional
Initial Securities that may be issued under the Indenture up to an aggregate
principal amount of (x) $350.0 million less (y) the aggregate principal amount
(on a U.S. Dollar Equivalent basis) of any Euro Notes issued by the Company
that are not Issue Date Euro Notes, and any Exchange Securities issued in
exchange for Initial Securities]. [This Security is one of the additional
Initial Securities issued in an aggregate principal amount of up to (x) $350.0
million less (y) the aggregate principal amount (on a U.S. Dollar Equivalent
basis) of any Euro Notes issued by the Company that are not Issue Date Euro
Notes. The Securities include such additional Securities, the Original
Securities in an aggregate principal amount of $380.0 million previously issued
under the Indenture and any Exchange Securities issued in exchange for Initial
Securities. The additional Initial Securities, the Original Securities and the
Exchange Securities are treated as a single class of securities under the
Indenture.] The Original Securities, such additional Initial Securities and the
Exchange Securities are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Debt, enter into consensual restrictions upon the payment
of certain dividends and distributions by such Restricted Subsidiaries, issue
or sell shares of capital stock of such Restricted Subsidiaries, enter into or
permit certain transactions with Affiliates, create or incur Liens
6
and make Asset Sales. The Indenture also imposes limitations on the ability of
the Company to consolidate or merge with or into any other Person or sell,
transfer, assign, lease, convey or otherwise dispose of all or substantially
all of the Property of the Company.
5. Optional Redemption
-------------------
Except as set forth below, the Securities may not be
redeemable prior to 2005. On and after that date, the Company may redeem the
Securities in whole at any time or in part from time to time at the following
redemption prices (expressed in percentages of principal amount), plus accrued
and unpaid interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date that is on or prior to the date of redemption),
if redeemed during the 12-month period beginning on or after January 15 of the
years set forth below:
Redemption
Period Price
------ ----------
2005 105.813%
2006 102.906%
2007 and thereafter 100.000%
Notwithstanding the foregoing, on or prior to January 15,
2004, the Company may redeem up to 33 1/3% of the original aggregate principal
amount of the Securities issued with the proceeds from one or more Public Equity
Offerings by the Company, at a redemption price equal to 111 5/8% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date that
it on or prior to the date of redemption); provided, however, that after giving
effect to any such redemption, at least 66 2/3% of the original aggregate
principal amount of the Securities remains outstanding. Any such redemption
shall be made within 75 days of such Public Equity Offering.
6. Sinking Fund
------------
The Securities are not subject to any sinking fund.
7. Notice of Redemption
--------------------
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at
7
his or her registered address. Securities in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued interest on all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to
accrue on such Securities (or such portions thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control
------------------------------------------------------------------------
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of purchase) as provided in, and subject to the terms of, the
Indenture.
9. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
10. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the
owner of it for all purposes.
8
11. Unclaimed Money
---------------
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
12. Discharge and Defeasance
------------------------
Subject to certain conditions, the Company at any time may
terminate some of or all its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Securityholder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Securities and (ii)
any default or noncompliance with any provision may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Securities, the Company and the
Trustee may amend the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article V of the
Indenture; (iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities; (iv) to make certain changes in the
subordination provisions; (v) to add Guarantees with respect to the Securities;
(vi) to secure the Securities; (vii) to add additional covenants or to surrender
rights and powers conferred on the Company; (viii) to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA; or (ix) to make any change that does not adversely
affect the rights of any Securityholder.
14. Defaults and Remedies
---------------------
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the Securities
then outstanding, subject to certain limitations, may declare all the Securities
to be immediately due and payable. Certain events of bankruptcy or insolvency
9
are Events of Default and shall result in the Securities being immediately due
and payable upon the occurrence of such Events of Default without any further
act of the Trustee or any Holder.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the Securities then outstanding may direct the Trustee in
its exercise of any trust or power under the Indenture. The Holders of a
majority in aggregate principal amount of the Securities then outstanding, by
written notice to the Company and the Trustee, may rescind any declaration of
acceleration and its consequences if the rescission would not conflict with any
judgment or decree, and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration.
15. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
17. Authentication
--------------
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
10
18. Abbreviations
-------------
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
19. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP Numbers
-------------
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. To the
extent such numbers have been issued, the Company has caused ISIN and Common
Code numbers to be similarly printed on the Securities and has similarly
instructed the Trustee. No representation is made as to the accuracy of such
numbers either as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
--------------------------------------------------------------------------------
Date: _______________________ Your Signature: ___________________________
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original
issuance of such Securities and the last date, if any, on which such Securities
were owned by the Company or any Affiliate of the Company, the undersigned
confirms that such Securities are being transferred in accordance with its
terms:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration statement under
the Securities Act of 1933; or
(3) [ ] inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A under
the Securities Act of 1933) that purchases for its
own account or for the account of a qualified
institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule 144A,
in each
12
case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(4) [ ] outside the United States in an offshore trans-
action within the meaning of Regulation S under the
Securities Act in compliance with Rule 904 under the
Securities Act of 1933; or
(5) [ ] to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933) that has furnished to
the Trustee a signed letter containing
certain representations and agreements (the form of
which letter can be obtained from the Trustee or the
Company); or
(6) [ ] pursuant to another available exemption from
registration provided by Rule 144 under the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however, that
if box (4), (5) or (6) is checked, the Trustee may require, prior to
registering any such transfer of the Securities, such legal opinions,
certifications and other information as the Company has reasonably
requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933.
--------------------------------
Your Signature
Signature Guarantee:
Date:
------------------------------ --------------------------------
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
--------------------------------------------------------------------------------
13
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
----------------------- ------------------------------------
NOTICE: To be executed by
an executive officer
14
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is
$[ ]. The following increases or decreases in this Global Security have been
made:
Signature of
Principal amount authorized
Amount of decrease Amount of increase of this Global signatory of
in Principal in Principal Security following Trustee or
Date of Amount of this Amount of this such decrease or Securities
Exchange Global Security Global Security increase Custodian
-------- ------------------ ------------------ ------------------ ------------
15
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased
by the Company pursuant to Section 4.07 (Asset Sale) or 4.12 (Change of Control)
of the Indenture, check the box:
[ ]
If you want to elect to have only part of this
Security purchased by the Company pursuant to Section 4.07 or 4.12 of the
Indenture, state the amount:
$
Date: __________________ Your Signature: ___________________________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:____________________________________________________________
Signature must be guaranteed by a participant
in a recognized signature guaranty medallion
program or other signature guarantor acceptable
to the Trustee.
EXHIBIT A
[FORM OF FACE OF SECURITY]
No. [up to](3) $__________
11 5/8% Senior Note due 2008
CUSIP No.[52736R AJ l](1)
[U52799 AE 0](2)
ISIN No. [US52736RAJ14](1)
[USU52799AE03](2)
Common Code No. [012338678](1)
[012338732](2)
▇▇▇▇ ▇▇▇▇▇▇▇ & CO., a Delaware corporation, promises to pay to
[Cede & Co.]3, or registered assigns, the principal sum [of Dollars](4)
[as set forth on the Schedule of Increases or Decreases annexed hereto](3)on
January 15, 2001.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
__________________
1 Insert for Rule 144A Global Note.
2 Insert for Reg. S Global Note.
3 Insert for Global Securities.
4 Insert for Definitive Securities.
2
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
LEVI ▇▇▇▇▇▇▇ & CO.,
by
--------------------------------------
Name:
Title:
by
--------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated:
CITIBANK, N.A.,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by: ----------------------------------------
Authorized Signatory
__________________
*/ If the Security is to be issued in global form, add the Global Securities
Legend from Exhibit 1 to Appendix A and the attachment from such Exhibit 1
captioned "TO BE ATTACHED TO GLOBAL SECURITIES - SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL SECURITY".
3
[FORM OF REVERSE SIDE OF SECURITY]
11 5/8% Senior Note due 2008
1. Interest.
--------
▇▇▇▇ ▇▇▇▇▇▇▇ & CO., a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above. The Company will pay
interest semiannually on January 15 and July 15 of each year. Interest on the
Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from January 18, 2000. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months. The Company
shall pay interest on overdue principal at the rate borne by the Securities
plus 1% per annum, and it shall pay interest on overdue installments of
interest at the rate borne by the Securities to the extent lawful.
2. Method of Payment
-----------------
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders of Securities at
the close of business on the January 1 or July 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. Payments in respect of the
Securities represented by a Global Security (including principal, premium and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Company will make all
payments in respect of a Definitive Security (including principal, premium and
interest), by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in the case
-------- -------
of a Holder of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in
the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
4
3. Paying Agent and Registrar
--------------------------
Initially, CITIBANK, N.A., a banking association (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without notice. The Company
or any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
4. Indenture
---------
The Company issued the Securities under an Indenture dated as
of January 18, 2001 (the "Indenture"), between the Company and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
------
▇▇.▇▇. 77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement of
those terms.
The Securities are senior unsecured obligations of the Company
limited to an aggregate principal amount at any one time outstanding of (x)
$850.0 million less (y) the aggregate principal amount (on a U.S. Dollar
Equivalent basis) of any Euro Notes issued by the Company (subject to Sections
2.01 and 2.08 of the Indenture). This Security is one of the Exchange
Securities referred to in the Indenture issued in exchange for Initial
Securities. The Securities include the Exchange Securities, the Original
Securities in the aggregate principal amount of $380.0 million and additional
Initial Securities in an aggregate principal amount of up to (x) $350.0 million
less (y) the aggregate principal amount (on a U.S. Dollar Equivalent basis) of
any Euro Notes issued by the Company that are not Issue Date Euro Notes. The
Exchange Securities, the Original Securities and such additional Initial
Securities are treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on the ability of the Company and its
Restricted Subsidiaries to, among other things, make certain Investments and
other Restricted Payments, pay dividends and other distributions, incur Debt,
enter into consensual restrictions upon the payment of certain dividends and
distributions by such Restricted Subsidiaries, issue or sell shares of capital
stock of such Restricted Subsidiaries, enter into or permit certain
transactions with Affiliates, create or incur Liens and make Asset Sales. The
Indenture also imposes limitations on the ability of the Company to consolidate
or merge with or into any other Person or sell, transfer, assign, lease, convey
5
or otherwise dispose of all or substantially all of the Property of the
Company.
5. Optional Redemption
-------------------
Except as set forth below, the Securities may not be
redeemable prior to January 15, 2005. On and after that date, the Company may
redeem the Securities in whole at any time or in part from time to time at the
following redemption prices (expressed in percentages of principal amount), plus
accrued and unpaid interest, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date that is on or prior to the date of
redemption), if redeemed during the 12-month period beginning on or after
January 15 of the years set forth below:
Redemption
Period Price
------ ----------
2005 105.813%
2006 102.906%
2007 and thereafter 100.000%
Notwithstanding the foregoing, on or prior to January 15,
2004, the Company may redeem up to 33 1/3% of the original aggregate principal
amount of the Securities issued with the proceeds from one or more Public Equity
Offerings by the Company, at a redemption price equal to 111 5/8% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date that
it on or prior to the date of redemption); provided, however, that after giving
-------- -------
effect to any such redemption, at least 66 2/3% of the original aggregate
principal amount of the Securities remains outstanding. Any such redemption
shall be made within 75 days of such Public Equity Offering.
6. Sinking Fund
------------
The Securities are not subject to any sinking fund.
6
7. Notice of Redemption
--------------------
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address. Securities
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control
------------------------------------------------------------------------
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of purchase) as provided in, and subject to the terms of, the
Indenture.
9. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
7
10. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money
---------------
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
12. Discharge and Defeasance
------------------------
Subject to certain conditions, the Company at any time may
terminate some of or all its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Securityholder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Securities and (ii)
any default or noncompliance with any provision may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Securities, the Company and the
Trustee may amend the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article V of the
Indenture; (iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities; (iv) to make certain changes in the
subordination provisions; (v) to add Guarantees with respect to the Securities;
(vi) to secure the Securities; (vii) to add additional covenants or to surrender
rights and powers conferred on the Company; (viii) to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA; or (ix) to make any change that does not adversely
affect the rights of any Securityholder.
8
14. Defaults and Remedies
---------------------
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the Securities
then outstanding, subject to certain limitations, may declare all the Securities
to be immediately due and payable. Certain events of bankruptcy or insolvency
are Events of Default and shall result in the Securities being immediately due
and payable upon the occurrence of such Events of Default without any further
act of the Trustee or any Holder.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the Securities then outstanding may direct the Trustee in
its exercise of any trust or power under the Indenture. The Holders of a
majority in aggregate principal amount of the Securities then outstanding, by
written notice to the Company and the Trustee, may rescind any declaration of
acceleration and its consequences if the rescission would not conflict with any
judgment or decree, and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration.
15. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
9
17. Authentication
--------------
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
-------------
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
19. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP Numbers
-------------
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. To the
extent such numbers have been issued, the Company has caused ISIN and Common
Code numbers to be similarly printed on the Securities and has similarly
instructed the Trustee. No representation is made as to the accuracy of such
numbers either as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
-------------------------------------------------------------------------------
Date: _______________________ Your Signature: _________________________________
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
Signature must be guaranteed by a participant in a recognized signature
guaranty medallion program or other signature guarantor acceptable to the
Trustee.
11
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY PURCHASED
BY THE COMPANY PURSUANT TO SECTION 4.07 (ASSET SALE) OR 4.12 (CHANGE OF CONTROL)
OF THE INDENTURE, CHECK
THE BOX: ___
/ /
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS
SECURITY PURCHASED BY THE COMPANY PURSUANT TO SECTION 4.07 OR 4.12 OF THE
INDENTURE, STATE THE AMOUNT:
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE SECURITY)
SIGNATURE GUARANTEE:_______________________________________
SIGNATURE MUST BE GUARANTEED BY A
PARTICIPANT IN A RECOGNIZED SIGNATURE
GUARANTY MEDALLION PROGRAM OR OTHER
SIGNATURE GUARANTOR ACCEPTABLE TO THE
TRUSTEE.
EXHIBIT B
Form of
Transferee Letter of Representation
[Company]
In care of
[ ]
[ ]
[ ]
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal
amount of the 11 5/8% Senior Notes due 2008 (the "Securities") of ▇▇▇▇ ▇▇▇▇▇▇▇ &
CO. (the "Company").
Upon transfer, the Securities would be registered in the name of the new
beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such
an institutional "accredited investor" at least $250,000 principal amount of
the Securities, and we are acquiring the Securities not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act. We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our investment
in the Securities, and we invest in or purchase securities similar to the
Securities in the normal course of our business. We, and any accounts for which
we are acting, are each able to bear the economic risk of our or its
investment.
2. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted
in the following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing
2
Securities to offer, sell or otherwise transfer such Securities prior to the
date that is two years after the later of the date of original issue and the
last date on which the Company or any affiliate of the Company was the owner of
such Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a registration
statement that has been declared effective under the Securities Act, (c) in a
transaction complying with the requirements of Rule 144A under the Securities
Act ("Rule 144A"), to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that is purchasing for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Securities
of $100,000, or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Securities
is proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Company and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act and that it is acquiring such Securities for
investment purposes and not for distribution in violation of the Securities Act.
Each purchaser acknowledges that the Company and the Trustee reserve the right
prior to the offer, sale or other transfer prior to the Resale Restriction
Termination Date of the
3
Securities pursuant to clause (d), (e) or (f) above to require the delivery of
an opinion of counsel, certifications or other information satisfactory to the
Company and the Trustee.
TRANSFEREE:_________________,
by:_______________________