EXHIBIT 4.2
XXXX FOOD COMPANY, INC.,
as Issuer,
and
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
----------
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 30, 2002
Supplementing the Trust Indenture Dated as of July 15, 1993
----------
$400,000,000
7 1/4% Notes due 2009
FIRST SUPPLEMENTAL INDENTURE, dated as of April 30, 2002, between XXXX FOOD
COMPANY, INC., a Delaware corporation (the "Company"), and X.X. Xxxxxx Trust
Company, National Association (formerly known as the Chase Manhattan Bank and
Trust Company, National Association, and formerly known as Chemical Trust
Company of California), having its principal corporate trust office in San
Francisco, California, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture, dated as of July 15, 1993 (the "Original Indenture" and, together
with the Officers' Certificate under Sections 102, 201, 301 and 303 of the
Original Indenture, dated as of October 6, 1998 (the "1998 Officers'
Certificate"), the Officers' Certificate under Section 201, 301 and 303 of the
Original Indenture dated as of August 3, 1993 (the "1993 Officers' Certificate")
and this First Supplemental Indenture, the "Indenture"), providing for the
issuance by the Company from time to time of its unsecured debt securities to be
issued in one or more series (in the Original Indenture and herein called the
"Securities");
WHEREAS, Section 301 of the Original Indenture provides for various matters
with respect to any series of Securities issued under the Original Indenture to
be established in an indenture supplemental to the Indenture;
WHEREAS, Section 901(5) of the Original Indenture provides for certain
changes in the Indenture with respect to any series of Securities issued under
the Original Indenture, provided that such changes do not affect any outstanding
Securities under the Original Indenture;
WHEREAS, Section 901(6) of the Original Indenture provides for the Company
and the Trustee to enter into an indenture supplemental to the Original
Indenture to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301 of the Original Indenture;
WHEREAS, the Company, in the exercise of the power and authority conferred
upon and reserved to it under the provisions of the Original Indenture, has duly
determined to make, execute and deliver to the Trustee this First Supplemental
Indenture to the Original Indenture in order to establish the form and terms of,
and to provide for the creation and issue of, a series of Securities designated
as the "7 1/4% Senior Notes due 2009" (the "Notes") under the Original
Indenture in the initial aggregate principal amount of $400,000,000; and
WHEREAS, all things necessary to make the Notes, when executed by the
Company and authenticated and delivered by the Trustee or any Authenticating
Agent and issued upon the terms and subject to the conditions hereinafter and in
the Indenture set forth against payment therefor, the valid, binding and legal
obligations of the Company and to make this First Supplemental Indenture a
valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH that, in order
to establish the terms of a series of Securities designated as the "7 1/4%
Senior Notes due 2009", and for and in consideration of the premises and of the
covenants contained in the Original Indenture and in this First Supplemental
Indenture and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is mutually covenanted and
agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. Each capitalized term that is used herein and is
defined in the Original Indenture shall have the meaning specified in the
Original Indenture unless such term is otherwise defined herein.
2
"Additional Interest" means all Additional Interest then owing under
Section 2(e) of the Registration Rights Agreement.
"Attributable Debt" means, as to any particular lease under which the
Company or any Restricted Subsidiary is at the time liable and at any date as of
which the amount thereof is to be determined, the total net amount of rent
required to be paid under that lease during its remaining term (including any
period for which the lease has been extended or may, at the option of the
lessor, be extended), discounted from the respective due dates thereof to such
date at a rate per year equal to the weighted average interest rate per year
borne by the Securities of each series outstanding pursuant to the Indenture
compounded semiannually. The net amount of rent required to be paid under any
such lease for any such period shall be the aggregate amount of the rent payable
by the lessee with respect to that period after excluding amounts required to be
paid on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, the net amount shall also include the
amount of the penalty, but no rent shall be considered as required to be paid
under the lease subsequent to the first date upon which it may be so terminated.
"Business Day" shall mean any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New York
or San Francisco, California.
"Certificated Note" means any Note other than a Global Note.
"Clearstream" means Clearstream Banking, societe anonyme, or any successor
thereto.
"Closing Date" shall mean the date on which the Notes are originally issued
under this First Supplemental Indenture.
"Commission" shall mean the United States Securities and Exchange
Commission or any successor agency or government body performing the functions
currently performed by the United States Securities and Exchange Commission.
"CUSIP Number" means the alphanumeric designation assigned to a Note by
Standard & Poor's CUSIP Service Bureau.
"Depositary" has the meaning set forth in Section 210(a) hereof.
"Distribution Compliance Period" means the 40 calendar days after the
Closing Date, except that all offers and sales by a distributor (as defined in
Regulation S) of an unsold allotment or subscription shall be deemed to be made
during the "Distribution Compliance Period".
"DTC" shall mean The Depository Trust Company or any successor Depositary
with respect to the Global Notes.
"DTC Participant" shall mean any person that has an account with DTC
through which beneficial owners acquire and hold an interest in the Notes.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear
System, or any successor thereto.
"Exchange Notes" means any debt securities of the Company to be offered to
Holders of Notes in exchange for the Notes pursuant to the Exchange Offer or
otherwise pursuant to a Registration of Notes containing terms identical in all
material respects to the Notes for which they are exchanged, except that (i)
interest on the Exchange Notes shall accrue from the last date on which interest
was paid on the Notes or, if no such interest has been paid, from the Closing
Date and (ii) the Exchange Notes will not contain terms with respect to transfer
restrictions, minimum purchase or the payment of Additional Interest upon the
occurrence of a Registration Default.
3
"Exchange Offer" means the exchange offer by the Company of Exchange Notes
for Notes pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means a Registration Statement of
the Company under the Securities Act registering Exchange Notes for distribution
pursuant to the Exchange Offer.
"Funded Debt" means (i) all Indebtedness of the Company and the Restricted
Subsidiaries maturing on, or renewable or extendible at the option of the
obligor to, a date more than one year from the date of the determination thereof
that is or would be classified as long-term debt on a balance sheet prepared in
accordance with generally accepted accounting principles (including Indebtedness
under any revolving credit arrangement with banks), (ii) guarantees, direct or
indirect, and other contingent obligations of the Company and the Restricted
Subsidiaries in respect of, or to purchase or otherwise acquire or be
responsible or liable for (through the investment of funds or otherwise), any
Indebtedness of others (but not including contingent liabilities on customers'
receivables sold with recourse) and (iii) amendments, renewals, extensions and
refunding of any such Indebtedness.
"Global Note" means a Note bearing the legend specified in Section 202 of
the Original Indenture evidencing all or part of the Notes, issued to the
Depositary or its nominee with respect to such Notes and registered in the name
of such Depositary or nominee.
"Indebtedness" means, with respect to any person, every obligation of such
person for money borrowed or evidenced by bonds, debentures, notes or other
similar instruments, whether or not for money borrowed or given in connection
with the acquisition of any business, properties or assets, including
securities.
"Indenture" shall have the meaning specified in the second paragraph of the
recitals of this First Supplemental Indenture.
"Initial Purchasers" shall mean Banc of America Securities LLC, Credit
Suisse First Boston Corporation, Commerzbank Capital Markets Corp., Deutsche
Bank Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and Scotia Capital (USA) Inc.,
as initial purchasers pursuant to the Purchase Agreement, dated April 25, 2002,
among the Company and the Initial Purchasers.
"Institutional Accredited Investor" shall mean an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Lien" means, with respect to any property or assets, any mortgage, pledge,
security interest, lien, conditional sale or other title retention agreement or
other similar encumbrance.
"Make-Whole Amount" means, in connection with any optional redemption of
Notes, the excess, if any, of (a) the aggregate present value as of the date of
such redemption of each dollar of principal being redeemed and the amount of
interest, exclusive of interest accrued to the date of redemption, that would
have been payable in respect of each such dollar if such redemption had not been
made, determined by discounting, on a semiannual basis, such principal and
interest at the Reinvestment Rate, determined on the third business day in The
City of New York preceding the date notice of such redemption is given, from the
respective dates on which such principal and interest would have been payable if
such redemption had not been made, to the date of redemption, over (b) the
aggregate principal amount of the Notes being redeemed.
"Net Tangible Assets" means the net book value of all assets of the Company
and the Restricted Subsidiaries, excluding any amount carried as assets for
shares of capital stock held in treasury, debt discount and expense, investments
in and advances to Subsidiaries other than Restricted Subsidiaries, goodwill,
patents and trademarks, less all liabilities of the Company and of the
Restricted Subsidiaries (except Funded Debt, minority interests in Restricted
Subsidiaries, deferred taxes and general contingency reserves of the Company and
of the Restricted Subsidiaries), all as determined on a consolidated basis in
accordance with generally accepted accounting principles.
4
"1993 Officers' Certificate" has the meaning set forth in the first
paragraph of the Recitals of this First Supplemental Indenture.
"1998 Officers' Certificate" has the meaning set forth in the first
paragraph of the Recitals of this First Supplemental Indenture.
"Nonrecourse Obligation" means indebtedness or lease payment obligations
substantially related to (i) the acquisition of assets not previously owned by
the Company or any of the Company's Restricted Subsidiaries or (ii) the
financing of a project involving the development or expansion of the Company's
properties or any properties of the Restricted Subsidiaries, as to which the
obligee with respect to such indebtedness or obligation has no recourse to the
Company's general corporate funds or the general corporate funds of any of the
Restricted Subsidiaries or any of the Company's assets or any assets of the
Restricted Subsidiaries other than the assets that were acquired with the
proceeds of such transaction or the project financed with the proceeds of such
transaction (and funds generated by such assets or project) except pursuant to a
covenant to pay to such obligee or to the obligor of such indebtedness or
obligation an amount equal to all or a portion of the amount of any dividends
received from such obligor within the previous twelve months.
"Notes" shall mean any of the Securities, defined as Notes in the fifth
paragraph of the recitals hereof, that are authenticated and delivered under
this First Supplemental Indenture. For all purposes of this First Supplemental
Indenture, the term "Notes" shall include the Notes initially issued on the
Closing Date and any Exchange Notes to be issued and exchanged for any Notes
pursuant to the Registration Rights Agreement and this First Supplemental
Indenture. The term "Notes" shall also include Notes issued after the Closing
Date and designated in a Board Resolution, Officers' Certificate or supplemental
indenture as being part of the same series as the Notes issued on the Closing
Date and any Exchange Notes issued and exchanged for any such Notes. For
purposes of this First Supplemental Indenture and the Indenture, all Notes shall
vote together as one series of Securities.
"Original Indenture" shall have the meaning specified in the first
paragraph of the recitals of this First Supplemental Indenture.
"Principal Property" means any manufacturing plant or processing facility,
including the equipment constituting a part thereof, which is located within the
United States or its territories or possessions, of the Company or a Restricted
Subsidiary, having a net book value exceeding 1% of Net Tangible Assets.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Shelf Registration Statement, and by
all other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"QIB" shall mean a "qualified institutional buyer" as defined in Rule 144A.
"Registrable Note" shall mean any Note which shall be deemed a "Registrable
Security" for purposes of the Registration Rights Agreement.
"Registration" means a registered exchange offer for the Notes by the
Company pursuant to the Exchange Offer Registration Statement or other
registration for resale of the Notes under the Securities Act pursuant to a
Shelf Registration Statement, in each case in accordance with the terms of the
Registration Rights Agreement.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of April 30, 2002, among the Company and the Initial
Purchasers.
"Registration Default" has the meaning set forth in the Registration Rights
Agreement.
5
"Registration Statement" shall mean any registration statement of the
Company filed with the Commission pursuant to the Securities Act which covers
any of the Exchange Notes or Registrable Notes pursuant to the provisions of the
Registration Rights Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Regular Record Date" has the meaning set forth in Section 204 hereof.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" has the meaning set forth in Section 210(b)
hereof.
"Reinvestment Rate" means 0.375% plus the arithmetic mean of the yields
under the heading "Week Ending" published in the most recent Statistical Release
under the caption "Treasury Constant Maturities" for the maturity, rounded to
the nearest month, corresponding to the remaining life to maturity, as of the
redemption date, of the principal of the Notes being redeemed. If no maturity
exactly corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding in each of
such relevant periods to the nearest month. For the purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used. If the format or
content of the Statistical Release changes in a manner that precludes
determination of the Treasury yield in the above manner, then the Treasury yield
shall be determined in the manner that most closely approximates the above
manner, as reasonably determined by the Company.
"Resale Restriction Termination Date" has the meaning set forth in the
Restrictive Legend.
"Restricted Subsidiary" means any Subsidiary of the Company, other than any
Subsidiary that is engaged primarily in the management, development and sale or
financing of real property.
"Restricted Certificated Note" has the meaning set forth in Section 210(c)
hereof.
"Restrictive Legend" shall mean the legend set forth on the face of the
Notes attached as Exhibits A and B.
"Rule 144A" shall mean Rule 144A under the Securities Act.
"Rule 144A Global Note" has the meaning set forth in Section 210(a) hereof.
"Sale and Leaseback Transaction" of any person means an arrangement with
any bank, insurance company or other lender or investor, or to which any such
bank, company, lender or investor is a party, providing for the leasing by the
Company or any Restricted Subsidiary of any Principal Property that has been or
is to be sold or transferred more than 180 days after the latest of the
acquisition, completion of construction or commencement of full operation by the
Company or any Restricted Subsidiary to such bank, insurance company, lender or
investor, or to any person to whom funds have been or are to be advanced by such
bank, insurance company, lender or investor on the security of such Principal
Property.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Senior Funded Debt" means all Funded Debt except Subordinated Funded Debt.
"Shelf Registration Statement" means a shelf registration statement under
the Securities Act filed by the Company, if required by, and meeting the
requirements of, the Registration Rights Agreement, registering Notes for
resale.
6
"Stated Maturity Date" shall have the meaning specified in Section 203
hereof and shall constitute the "Stated Maturity" of the principal of the Notes
as such term is defined in Section 101 of the Original Indenture.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which reports yields on actively traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any required determination under the indenture,
then such other reasonably comparable index which shall be designated by the
Company.
"Subordinated Funded Debt" means any of the Company's unsecured Funded Debt
that is expressly made subordinate and junior in rank and right of payment to
any Securities of each series outstanding under the Indenture in the event of
any insolvency or bankruptcy proceedings, and any receivership, liquidation,
reorganization or other similar proceedings relative to the Company or the
Company's creditors, as such, or to our property, or in the event of any
proceedings for the Company's voluntary liquidation, dissolution or other
winding up, whether or not involving insolvency or bankruptcy.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock that ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" shall mean X.X. Xxxxxx Trust Company, National Association (as
successor in interest to the Chase Manhattan Bank and Trust Company, National
Association, and Chemical Trust Company of California).
"Unrestricted Certificated Note" means any Certificated Note other than a
Restricted Certificated Note.
"Unrestricted Global Note" means any Global Note evidencing Exchange Notes
or received in the Exchange Offer, Notes transferred pursuant to an effective
Shelf Registration Statement or Notes issued without the Restrictive Legend
after the Resale Restriction Termination Date.
Section 102. Section References. Each reference to a particular section set
forth in this First Supplemental Indenture shall, unless the context otherwise
requires, refer to this First Supplemental Indenture.
ARTICLE TWO
TITLE AND TERMS OF THE NOTES
Section 201. Title of the Notes. Pursuant to Sections 301 and 901 of the
Original Indenture, this First Supplemental Indenture hereby establishes a
series of Securities designated as the "7 1/4% Senior Notes due 2009" of the
Company. For purposes of the Original Indenture, the Notes shall constitute a
single series of Securities.
Section 202. Limitation on Aggregate Principal Amount. The aggregate
principal amount of the Notes that may be issued under this First Supplemental
Indenture is limited initially to $400,000,000 and the aggregate principal
amount of Exchange Notes to be issued in the Exchange Offer is $400,000,000;
provided that (i) additional Notes (and Exchange Notes issued in respect of such
Notes) may be issued after the Closing Date as part of the same series of
Securities as the Notes issued under this First Supplemental Indenture, if so
designated in a Board Resolution, Officers' Certificate or supplemental
indenture executed and delivered after the Closing Date, and (ii) the limitation
on the total aggregate principal amount of Notes set forth in this Section 202
shall not apply to such
7
additional Notes (and Exchange Notes). Except as provided in this Section 202
and Section 306 of the Original Indenture (and the terms of any Board
Resolution, Officers' Certificate or supplemental indenture executed and
delivered after the Closing Date), the Company shall not execute and the Trustee
shall not authenticate or deliver Notes or Exchange Notes in excess of the
aggregate principal amounts. Nothing contained in this Section 202 or elsewhere
in this First Supplemental Indenture, or in the Notes, is intended to or shall
limit execution by the Company or authentication or delivery by the Trustee of
Notes under the circumstances contemplated by Sections 303, 304, 305, 306, 906
or 1107 of the Original Indenture.
Section 203. Maturity of the Notes. The Stated Maturity Date on which the
principal of the Notes shall be due and payable will be May 1, 2009.
Section 204. Interest and Interest Rates. The Notes will pay interest
thereon from April 30, 2002 or from the most recent "Interest Payment Date" to
which interest has been paid or duly provided for, semiannually on May 1 and
November 1 of each year, commencing November 1, 2002, and on the Stated Maturity
Date or date of any earlier redemption (if other than an Interest Payment Date),
at the rate of 7.25% per annum, until the principal of the Notes is paid or duly
provided for; provided that if any Registration Default with respect to the
Notes occurs under the Registration Rights Agreement, then the Company shall
also pay the Additional Interest, if any, payable pursuant to Section 2(e) of
the Registration Rights Agreement on such Interest Payment Dates or Stated
Maturity Date or date of any earlier redemption (if other than an Interest
Payment Date). The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the person in whose name the Notes (or one or more Predecessor Notes) are
registered at the close of business on the "Regular Record Date" for such
interest, which shall be the April 15 or October 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and shall be payable as
provided in the Indenture.
Section 205. Place of Payment. The place or places where the principal of
and interest on the Notes shall be payable is at the agency of the Trustee
maintained for that purpose at the office of X.X. Xxxxxx Trust Company, National
Association, 00 Xxxxx Xxxxxx, Xxxxx Xxxxxxxx, Securities Window, Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 or c/o JPMorgan Chase Bank, 0000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxx, Xxxxx 00000, provided, however, that payment of interest on an
Interest Payment Date may be made at the option of the Company by check mailed
to the address of the person entitled thereto as such address shall appear in
the Security Register; provided, further, that all payments due on the Stated
Maturity Date or date of any earlier redemption in respect of principal of and
(unless such date is also an Interest Payment Date) interest on the Notes shall
be made by the Company in immediately available funds against presentation and
surrender thereof; and provided, further, that the Depositary, or its nominee,
as holder of the Global Notes, shall be entitled to receive payments of interest
by wire transfer of immediately available funds.
Section 206. Optional Redemption. The Notes are redeemable at any time in
whole, or from time to time in part, at a Redemption Price equal to the sum of
100% of the aggregate principal amount of the Notes being redeemed, accrued but
unpaid interest on those Notes to the Redemption Date and the Make-Whole Amount,
if any; provided, however, that installments of interest on Notes due on an
Interest Payment Date that occurs on or before any Redemption Date shall be
payable to the Holders of such Notes as of the close of business on the Regular
Record Date immediately preceding such Interest Payment Date.
Section 207. Sinking Fund. The Notes will not be subject to any sinking
fund provision or to repayment of the Notes prior to the Stated Maturity Date at
the option of the Note holders.
8
Section 208. Defeasance. The provisions of Sections 1302 and 1303 of the
Original Indenture, together with the other provisions of Article Thirteen of
the Original Indenture, shall be applicable to the Notes. The provisions of
Section 1303 of the Original Indenture shall apply to the covenants set forth in
Section 209 of this First Supplemental Indenture (and to events of default with
respect to such covenants) and to those covenants and events of default
specified in Section 1303 of the Original Indenture.
Section 209. Additional Covenants. The following provisions set forth below
as Sections 1008 and 1009 shall apply to the Notes as if such provisions had
been included in the Original Indenture as Sections 1008 and 1009, respectively:
"Section 1008. Limitation Upon Liens.
The Company will not itself, and will not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become liable for or suffer to exist any Indebtedness secured by a Lien on (i)
any Principal Property of the Company or any Restricted Subsidiary or (ii) any
shares of capital stock or Indebtedness of any Restricted Subsidiary (which
Indebtedness is then held by the Company or any Restricted Subsidiary), without
effectively providing that the Notes (together with, if the Company shall so
determine, any other Indebtedness of the Company or such Restricted Subsidiary
then existing or thereafter created which is not Subordinated Debt) shall be
secured equally and ratably with (or, at the option of the Company, prior to)
such secured Indebtedness, so long as such secured Indebtedness shall be so
secured, unless immediately thereafter, after giving effect thereto, the
aggregate amount of all such secured indebtedness plus all Attributable Debt of
the Company and its Restricted Subsidiaries in respect of Sale and Leaseback
Transactions (but excluding leases exempt from the prohibition of Section 1009
by Clauses (2) through (6) thereof) would not exceed 10% of Net Tangible Assets;
provided, however, that this Section 1008 shall not apply to, and there shall be
excluded from secured Indebtedness in any computation under this Section 1008,
Indebtedness secured by:
1. Liens on, and limited to, property of or shares of capital stock or
Indebtedness of any corporation existing at April 30, 2002 or at the time
such corporation becomes a Restricted Subsidiary;
2. Liens in favor of the Company or any Restricted Subsidiary;
3. Liens in favor of any governmental body to secure progress, advance or
other payments pursuant to any contract or provision of any statute;
4. (i) if made in the ordinary course of business, any Lien as security for
the performance of any contract or undertaking not directly or indirectly
in connection with the borrowing of money or the securing of Indebtedness,
or (ii) any Lien with any governmental agency required or permitted to
qualify the Company or any Restricted Subsidiary to conduct business, to
maintain self-insurance or to obtain the benefits of any law pertaining to
workmen's compensation, employment insurance, old age pensions, social
security or similar matters;
5. Liens for taxes, assessments or governmental charges or levies if such
taxes, assessments, governmental charges or levies shall not at the time be
due and payable, or if the same thereafter can be paid without penalty, or
if the same are being contested in good faith by appropriate proceedings;
6. Liens created by or resulting from any litigation or legal proceeding which
at the time is currently being contested in good faith by appropriate
proceedings, or Liens arising out of judgments or awards as to which the
time for prosecuting an appeal or proceeding for review has not expired;
7. Liens on, and limited to, property (including leasehold estates) or shares
of capital stock or Indebtedness, existing at the time of acquisition
thereof (including acquisition through merger or consolidation) or to
secure the payment of all or any part of the purchase price thereof or
9
construction thereon or to secure any Indebtedness incurred prior to, at
the time of, or within 120 days after the latest of the acquisition, the
completion of construction or the commencement of full operation of such
property for the purpose of financing all or any part of the purchase price
thereof or construction thereon;
8. Liens securing obligations issued by a state, territory or possession of
the United States, of any political subdivision of any of the foregoing or
the District of Columbia, to finance the acquisition or construction or
development of property, and on which the interest is not, in the opinion
of tax counsel of recognized standing or in accordance with a ruling issued
by the Internal Revenue Service, includible (in whole or in part) in gross
income of the holder by reason of Section 103(a)(1) of the Internal Revenue
Code (or any successor to such provision) as in effect at the time of the
issuance of such obligations;
9. Liens created in connection with a project financed with, and created to
secure, a Nonrecourse Obligation; or
10. any extension, renewal or replacement (or successive extensions, renewals
or replacements), as a whole or in part, or any Lien referred to in the
foregoing Clauses (1) through (9), to the extent the Indebtedness secured
by such Lien is not increased from the amount originally so secured,
provided that such extension, renewal or replacement Lien shall be limited
to all or a part of the same property or shares of capital stock or
Indebtedness that secured the Lien extended, renewed or replaced (plus
improvements on such property).
10
Section 1009. Limitation Upon Sale and Leaseback Transactions.
Except as hereinafter provided, the Company will not itself, and will not
permit any Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction; provided, however, that this covenant shall not apply to any Sale
and Leaseback Transaction if:
(1) the Company or such Restricted Subsidiary could create Indebtedness secured
by a Lien pursuant to Section 1008, excluding from secured Indebtedness in
any computation under that Section Indebtedness secured by Liens of the
type described in Clauses (1) through (10) thereof, on the Principal
Property to be leased in an amount equal to the Attributable Debt with
respect to such Sale and Leaseback Transaction without equally and ratably
securing the Notes, or
(2) the Company or a Restricted Subsidiary, within 180 days after the sale or
transfer shall have been made by the Company or by a Restricted Subsidiary,
applies an amount equal to the greater of the net proceeds from the sale of
the Principal Property leased pursuant to such arrangement or the fair
market value of the Principal Property so leased at the time of entering
into such arrangement (as determined in any manner approved by the Board of
Directors) to either (x) the retirement of Senior Funded Debt of the
Company or Funded Debt of a Restricted Subsidiary; provided, however, that
notwithstanding the foregoing, no retirement referred to in this Clause (2)
may be effected by payment at maturity or pursuant to any mandatory sinking
fund payment or any mandatory prepayment provision, or (y) purchase of
other property which will constitute Principal Property of the Company or
its Restricted Subsidiaries having a fair market value, in the opinion of
the Board of Directors of the Company, at least equal to the fair market
value of the Principal Property leased in such Sale and Leaseback
Transaction, or
(3) the lease in such Sale and Leaseback Transaction is for a period, including
renewals, of no more than three years, or
(4) the lease in such Sale and Leaseback Transaction secure or relates to
obligations issued by a state, territory or possession of the United
States, or any political subdivision of any of the foregoing, or the
District of Columbia, to finance the acquisition or construction of
property, and on which the interest is not, in the opinion of tax counsel
of recognized standing or in accordance with a ruling issued by the
Internal Revenue Service, includible (in whole or in part) in gross income
of the holder by reason of Section 103(a)(1) of the Internal Revenue Code
(or any successor to such provision) as in effect at the time of the
issuance of such obligations, or
(5) the lease payment obligation is created in connection with a project
financed with, and such obligation constitutes, a Nonrecourse Obligation,
or
(6) such arrangement is between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries."
Section 210. Specific Global and Certificated Note Forms. (a) Except as
otherwise provided herein, Notes offered and sold as part of their initial
offering and sale to QIBs shall be issued in the form of one or more Global
Notes (each a "Rule 144A Global Note") in definitive, fully registered form
without coupons, substantially in the form set forth in Exhibit B, with such
applicable legends as are provided for herein. Such Global Notes shall be
registered in the name of Cede & Co. or another nominee designated by DTC and
delivered to the Trustee, at its Corporate Trust Office in San Francisco as
custodian for DTC, as duly executed by the Company and authenticated by the
Trustee as provided in the Original Indenture. The aggregate principal amount of
any Rule 144A Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC for such
Global Note, as provided in Section 210(e) hereof. The "Depositary" for the
Global Notes shall be DTC or such other person as shall be designated by the
Company as Depositary for the Company pursuant to Section 305 of the Original
Indenture.
11
(b) Except as otherwise provided herein, Notes offered and sold as part of
their initial offering and sale in reliance on Regulation S shall be issued in
the form of one or more Global Notes in definitive, fully registered form
without coupons, substantially in the form set forth in Exhibit B, with such
applicable legends as are provided for herein. Such Global Notes shall be
registered in the name of Cede & Co. or another nominee designated by DTC and
delivered to the Trustee, at its Corporate Trust Office in San Francisco as
custodian for DTC, duly executed by the Company and authenticated by the Trustee
as herein provided, for credit by DTC to the respective accounts of beneficial
owners of such Notes (or such accounts as they may direct), which, during the
Distribution Compliance Period, will only be Euroclear and Clearstream. Each
such Global Note shall be referred to herein as a "Regulation S Global Note."
The aggregate principal amount of any Regulation S Global Note may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for DTC for such Global Note, as provided in Section
210(e) hereof. Except as otherwise provided herein or agreed to by the Company,
no Regulation S Global Note shall be issued except as provided in this paragraph
to evidence Notes offered and sold as part of their initial distribution in
reliance on Regulation S or thereafter transferred in reliance on Regulation S.
(c) Except as otherwise provided herein, Notes offered and sold as part of
their initial offering and sale to Institutional Accredited Investors who are
not QIBs shall be issued in the form of Certificated Notes in definitive, fully
registered form without coupons, registered in the name of the purchaser
thereof, substantially in the form set forth in Exhibit A (the "Restricted
Certificated Notes"), with such applicable legends as are provided for herein.
Restricted Certificated Notes may not be transferred or exchanged for interests
in a Global Note except as provided in Section 211.
Unless exchanged for an Exchange Note in connection with an effective
Registration pursuant to the Registration Rights Agreement, each Rule 144A
Global Note, each Regulation S Global Note and each Restricted Certificated Note
shall bear the Restrictive Legend on the face thereof, prior to the Resale
Restriction Termination Date.
(d) Interests of beneficial owners in a Global Note may be transferred in
accordance with the rules and procedures of DTC. In connection with any transfer
of a portion of the beneficial interests in a Global Note to beneficial owners
pursuant to Section 305 of the Original Indenture, the Security Registrar shall
reflect on its books and records the date and a decrease in the principal amount
of such Global Note in an amount equal to the principal amount of the beneficial
interest in such Global Note to be transferred. Notwithstanding Section 305 of
the Original Indenture, Restricted Certificated Notes (or Exchange Notes) will
be issued to DTC for beneficial owners in a Global Note if circumstances arise
described in clauses (1), (2) or (3) of the penultimate paragraph of Section 305
of the Original Indenture.
Section 211. Special Transfer and Exchange Provisions. Unless and until a
Note is exchanged for an Exchange Note in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement, the
following provisions shall apply to each such Note:
(a) Transfers and Exchanges of Restricted Certificated Notes and Interests in a
Rule 144A Global Note. With respect to the registration of any proposed
transfer or exchange of a Restricted Certificated Note or an interest in a
Rule 144A Global Note, if the Note to be transferred or exchanged consists
of:
(i) a Restricted Certificated Note, the Security Registrar shall register
the transfer or exchange to:
(A) a beneficial interest in a Rule 144A Global Note if such transfer
or exchange is being made by a proposed transferor or exchanger
who has delivered to the Company and the Security Registrar a
certificate from the transferor or exchanger substantially in the
form of Exhibit C; or
12
(B) a Regulation S Global Note if such transfer or exchange is being
made by a proposed transferor or exchanger who has delivered to
the Company and the Security Registrar a certificate from the
transferor or exchanger substantially in the form of Exhibit D.
Upon the transfer or exchange of Restricted Certificated Notes
(initially issued to an Institutional Accredited Investor) to a
QIB or in accordance with Regulation S, these Restricted
Certificated Notes may, unless the Rule 144A Global Note or the
Regulation S Note, as the case may be, has previously been
exchanged in whole for Restricted Certificated Notes, be
exchanged for a beneficial interest in the Rule 144A Global Note
or the Regulation S Note, as the case may be, subject to the
conditions specified herein. Thereafter, transfers or exchanges
of this beneficial interest will continue to be represented by a
Global Note, even if this transfer or exchange is to an
Institutional Accredited Investor. Upon the transfer or exchange
of a Restricted Certificated Note (initially issued to an
Institutional Accredited Investor) to an Institutional Accredited
Investor, that Note will remain a Restricted Certificated Note
and will require the transferee or exchangee to deliver a
certificate to the Trustee substantially in the form provided in
Exhibit G; or
(ii) a beneficial interest in a Rule 144A Global Note:
(A) to be transferred or exchanged to a transferee or exchangee who
takes delivery in the form of an interest in a Regulation S
Global Note, the Security Registrar shall register the transfer
or exchange if such transfer or exchange is being made by a
proposed transferor or exchanger who has delivered to the Company
and the Security Registrar a certificate substantially in the
form of Exhibit E; or
(B) to be transferred or exchanged to a transferee or exchangee who
takes delivery in the form of an interest in a Rule 144A Global
Note, the transfer or exchange of such interest may be effected
only through the book entry system maintained by the Depositary.
(b) Transfers and Exchanges of Interests in a Regulation S Global Note. With
respect to registration of any proposed transfer or exchange of a
beneficial interest in a Regulation S Global Note to a person who takes
delivery in the form of a beneficial interest in a Rule 144A Global Note,
the Security Registrar shall register the transfer or exchange of any Note
if the proposed transferor or exchanger has delivered to the Company and
the Security Registrar a certificate from the transferor or exchanger
substantially in the form of Exhibit F. No person shall be entitled to
effect any transfer or exchange that would result in any beneficial
interests in a Regulation S Global Note being held during the Distribution
Compliance Period otherwise than in or through accounts maintained at the
Depositary by or on behalf of Euroclear or Clearstream, except as provided
in this Section 211(b); provided that after the expiration of the
Distribution Compliance Period (but not earlier), investors may also hold
these interests through organizations other than Euroclear and Clearstream
that are participants in DTC's system.
13
(c) Transfers and Exchanges of Unrestricted Certificated Notes or Interests in
the Unrestricted Global Note. With respect to any transfer or exchange of
Unrestricted Certificated Notes or interests in the Unrestricted Global
Note, the Security Registrar shall register the transfer or exchange of any
such Note without requiring any additional certification.
(d) Legends. Upon the transfer, exchange or replacement of Notes that do not
bear a Restrictive Legend, the Security Registrar shall deliver Notes that
do not bear any Restrictive Legend. Upon the transfer, exchange or
replacement of Notes bearing a Restrictive Legend, the Security Registrar
shall deliver only Notes that bear such Restrictive Legend, unless (i)
Exchange Notes are being issued in the Exchange Offer, (ii) Notes are being
transferred pursuant to an effective Shelf Registration Statement, (iii)
the Resale Restriction Termination Date has passed or (iv) the Company
directs the Trustee to remove the Restrictive Legend because the Company
determines, on the basis of a legal opinion, certifications or other
information satisfactory to the Company and the Trustee, that neither such
Restrictive Legend or the related restrictions on transfer are required to
maintain compliance with the Securities Act.
(e) General. By its acceptance of any Note bearing a Restrictive Legend, each
Holder of such Note acknowledges the restrictions on transfer or exchange
of such Note set forth in this First Supplemental Indenture and in such
Restrictive Legend and agrees that it will transfer or exchange such Note
only as provided in this First Supplemental Indenture and such Restrictive
Legend. The Security Registrar shall not register a transfer or exchange of
any Note unless such transfer or exchange complies with the restrictions on
transfer or exchange of such Note set forth in this First Supplemental
Indenture. In connection with any transfer or exchange of Notes
contemplated in the restrictions on transfer applicable thereto, each
Holder agrees by its acceptance of the Notes to furnish the Security
Registrar or the Company with such certifications, legal opinions and/or
other information as either of them may reasonably require to confirm that
such transfer or exchange is being made pursuant to an exemption from, or a
transaction not subject to, the registration requirements of the Securities
Act; provided that the Security Registrar shall not be required to
determine (but may rely on a determination made by the Company with respect
to) the sufficiency of any such certifications, legal opinions or other
information.
ARTICLE THREE
AMENDMENT
Section 301. Amendments. Pursuant to Section 901(5) of the Original
Indenture, the following amendments to the Original Indenture will be effective
solely with respect to the Notes issued under this First Supplemental Indenture:
(a) The following sentence is added at the end of Section 301 of the Original
Indenture:
"All Securities of any series need not be issued at the same time and,
unless otherwise so provided, a series may be reopened for issuance of
additional Securities of such series."
(b) The first paragraph of Section 502 of the Original Indenture is deleted in
its entirety and replaced with the following paragraph:
"If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, other than under clause (6) or
(7) of Section 501, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of that
series may declare the principal amount of all of the Securities of that
series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount shall become immediately due and payable.
If an Event of Default specified in clause (6) or (7) of Section 501
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series shall ipso facto
14
become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder of any Security of that
series."
(c) Section 514 of the Original Indenture is deleted in its entirety and
replaced with the following:
"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,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit,
and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company; provided, further, that the provisions of this
Section 514 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of Outstanding Securities of
any series, or to any suit instituted by any Holder of the enforcement of
the payment of the principal of (or premium, if any) or interest, if any,
with respect to any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date, and, in the case of repayment, on or after the date for
repayment)."
(d) Section 801(1) of the Original Indenture is deleted in its entirety and
replaced with the following language:
"in case the Company shall consolidate with or merge into another Person or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of any premium and interest on all the
Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;".
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Section 401. Confirmation of Original Indenture. The Original Indenture, as
heretofore supplemented and amended by the 1993 Officers' Certificate, the 1998
Officers' Certificate and this First Supplemental Indenture, is in all respects
ratified and confirmed, and the Original Indenture, the 1993 Officers'
Certificate, the 1998 Officers' Certificate and this First Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
Section 402. Concerning the Trustee. The Trustee assumes no duties,
responsibilities or liabilities by reason of this First Supplemental Indenture
other than as set forth in the Original Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Original Indenture. The Trustee makes no
representation as to the validity, sufficiency or priority of this First
Supplemental Indenture.
Section 403. Governing Law. This First Supplemental Indenture and the Notes
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made or instruments entered into and, in each
case, performed in said state.
Section 404. Separability. In case any provision in this First Supplemental
Indenture or in the Notes shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and
15
enforceability of the remaining provisions of this First Supplemental Indenture
or the Notes shall not in any way be affected or impaired thereby.
Section 405. Counterparts. This First Supplemental Indenture may be
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same document.
Section 406. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
XXXX FOOD COMPANY, as Issuer
By:
------------------------------------
Name:
Title:
Attest:
-------------------------------------
Name:
Title:
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
Attest:
-------------------------------------
Name:
Title:
[SEAL]
16
EXHIBIT A
FORM OF FACE OF CERTIFICATED NOTE
[IF THIS IS A RESTRICTED CERTIFICATED NOTE, ADD THE FOLLOWING RESTRICTIVE
LEGEND: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER
THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF THAT REGISTRATION
OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A ("RULE 144A") UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (2) AGREES NOT TO OFFER, SELL
OR OTHERWISE TRANSFER THIS NOTE PRIOR TO THE DATE WHICH IS THE LATER OF (X) TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE
SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE NOTES AND THE
LAST DATE ON WHICH XXXX FOOD COMPANY, INC. OR ANY "AFFILIATE" (AS DEFINED IN
RULE 144 UNDER THE SECURITIES ACT) OF XXXX FOOD COMPANY, INC. WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) OR (Y) SUCH LATER DATE, IF ANY, AS
MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE")
EXCEPT (A) TO XXXX FOOD COMPANY, INC., (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPHS (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER
INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (F) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (G)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO COMPLIANCE WITH
ANY APPLICABLE STATE OR OTHER SECURITIES LAWS, AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT (I) PRIOR TO ANY SALE OR TRANSFER PURSUANT
TO CLAUSE (E) A CERTIFICATE OF TRANSFER (THE FORM OF WHICH MAY BE OBTAINED FROM
THE TRUSTEE) IS COMPLETED AND DELIVERED BY
A-2
THE TRANSFEROR TO XXXX FOOD COMPANY, INC. AND THE TRUSTEE AND (II) XXXX FOOD
COMPANY, INC. AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (I) PURSUANT TO CLAUSE (D), (E), (F) OR (G) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF
THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(B) ABOVE OR UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE
TERMS "UNITED STATES," "OFFSHORE TRANSACTION," AND "U.S. PERSON" HAVE THE
RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]
A-3
REGISTERED PRINCIPAL AMOUNT:
No. ____________________ $________________
CUSIP NO. ______________
INC.
7 1/4% Senior Note due 2009'>XXXX FOOD COMPANY, INC.
7 1/4% Senior Note due 2009Dole Food Company, Inc., a Delaware corporation (the
"COMPANY" which term includes any successor Person under the Indenture referred
to on the reverse hereof), for value received, hereby promises to pay _______ or
registered assigns, the principal sum of - DOLLARS _________ on May 1, 2009
(the "STATED MATURITY DATE"), unless redeemed prior to such date in accordance
with the provisions referred to on the reverse hereof (the Stated Maturity Date
or date of earlier redemption, as the case may be, is referred to herein as the
"Maturity Date" with respect to the principal repayable on such date), and to
pay interest on the outstanding principal sum of this Note from April 30, 2002
or from the most recent "INTEREST PAYMENT DATE" to which interest has been paid
or duly provided for, semiannually on May 1 and November 1 of each year,
commencing November 1, 2002, and on the Maturity Date, at the rate of 7 1/4% per
annum, until the principal hereof and Make-Whole Amount (as defined in the
Indenture), if any, applicable hereto is paid or duly provided for; provided
that if any Registration Default with respect to this Note occurs under the
Registration Rights Agreement, then, as provided in the Registration Rights
Agreement, the per annum interest rate on this Note will increase for the period
from the occurrence of such Registration Default until such time as no
Registration Default is in effect with respect to this Note (at which time the
interest rate will be reduced to its initial rate). The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note (or one
or more Predecessor Notes) is registered at the close of business on the
"REGULAR RECORD DATE" for such interest, which shall be the April 15 or October
15 (whether or not a Business Day, as defined below), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and shall be payable as provided in the Indenture.
The Company will at all times appoint and maintain a Paying Agent (which
may be the Trustee) authorized by the Company to pay the principal of and
Make-Whole Amount, if any, and interest on any Notes on behalf of the Company
and having an office or agency in The City of New York and in such other cities,
if any, as the Company may designate in writing to the Trustee (the "PLACE OF
PAYMENT") where Notes may be presented or surrendered for payment and where
notices, designations or requests in respect for payments with respect to Notes
may be served. The Company has initially appointed X. X. Xxxxxx Trust Company,
National Association as such Paying Agent.
Interest payments on this Note will be computed and paid on the basis of a
360-day year of twelve 30-day months. Interest payable on this Note on any
Interest Payment Date and on the Maturity Date will include interest accrued
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for (or from and including April 30, 2002, if no
interest has been paid on this Note) to but excluding such Interest Payment Date
or the Maturity Date, as the case may be.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, principal, Make-Whole Amount and/or interest payable with
respect to such Interest Payment Date or Maturity Date, as the case may be, will
be paid on the next succeeding Business Day with the same force and effect as if
it were paid on the date such payment was due, and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or the Maturity Date, as the case may be, to the next succeeding Business Day.
"BUSINESS DAY" means any day, other than
A-4
Saturday or Sunday, that is neither a legal holiday nor a day on which
commercial banks are authorized or required by law, regulation or executive
order to close in The City of New York or San Francisco.
The principal, Make-Whole Amount and interest payable on this Note will be
made by wire transfer of immediately available funds to the Holder hereof in
such currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts; provided, however, that
payment of interest on an Interest Payment Date may be made at the option of the
Company by check mailed to the address of the person entitled thereto as such
address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
XXXX FOOD COMPANY, INC.
BY:
------------------------------------
NAME:
TITLE:
ATTEST:
BY:
---------------------------------
NAME:
TITLE:
A-5
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
X. X. Xxxxxx Trust Company, National Association, as Trustee
By:
---------------------------------
Authorized Signatory
Dated:
------------------------------
A-6
[FORM OF REVERSE OF CERTIFICATED NOTE]
XXXX FOOD COMPANY, INC.
7 1/4% Senior Note due 2009'>[FORM OF REVERSE OF CERTIFICATED NOTE]
XXXX FOOD COMPANY, INC.
7 1/4% Senior Note due 2009This Note is one of a duly authorized issue of notes
of the Company (herein called the "Notes"), issued under an Indenture dated as
of July 15, 1993, as supplemented by the First Supplemental Indenture thereto
dated as of April 30, 2002 (as so supplemented, the "INDENTURE") among the
Company and X. X. Xxxxxx Trust Company, National Association, as Trustee (the
"TRUSTEE," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and of the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated as the "7 1/4% Senior
Notes due 2009" (the "Notes"), limited initially in aggregate principal amount
to US$400,000,000. Capitalized terms used herein but not defined have the
meanings ascribed to such terms in the Indenture.
This Note is not subject to any sinking fund.
The Indenture provides that the Notes are redeemable at any time in whole,
or from time to time in part, at a Redemption Price (as defined in the
Indenture) equal to the sum of 100% of the aggregate principal amount of the
Notes being redeemed, unpaid interest accrued on those Notes to the Redemption
Date (as defined in the Indenture) and the Make-Whole Amount, if any, applicable
thereto; provided, however, that installments of interest on Notes due on an
Interest Payment Date which occurs on or before any Redemption Date shall be
payable to the Holders of such Notes as of the close of business on the Regular
Record Date immediately preceding such Interest Payment Date. The Notes are
redeemable on not less than 30 nor more than 60 calendar days' prior written
notice.
In case an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be, as in certain cases shall be,
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Note or (ii) certain respective covenants and Events
of Default with respect to this Note, in each case upon compliance with certain
conditions set forth therein, which provisions apply to the Notes.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement in accordance with its terms.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority of the principal amount of each series of Securities at
the time Outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority of the principal amount of the
Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note or
Notes issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of
A-7
and Make-Whole Amount, if any, and interest on this Note at the times, places
and rate, and in the currency herein prescribed.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, the transfer of this Note is registrable in the Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company in the Place of Payment, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder hereof or its attorney duly
authorized in writing, and thereupon one or more new Notes of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000 in excess thereof;
provided, however, that any purchases of Restricted Certificated Notes must be
in a minimum amount of $100,000. As provided in the Indenture and subject to
certain limitations herein and therein set forth, Notes are exchangeable for the
same aggregate principal amount of Notes of like tenor and authorized
denominations, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any Note,
or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, of the
Company or of any successor thereto, either directly or through the Company or
any successor thereto.
This Note and the Indenture are governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
A-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT ___________________ Custodian ________________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_______________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
________________________________________________________________________________
Please Print or Type Name and Address including Postal Zip Code of
Assignee:
________________________________________________________________________________
________________________________________________________________________________
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints
________________________________________________________________________________
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated: ________________
Signature Guaranteed
-------------------------------------
NOTICE: Signature must be guaranteed NOTICE: The signature to this
by a member firm of the New York assignment must correspond with the
Stock Exchange or a commercial bank name as written upon the face of the
or trust company. within Note in every particular,
without alteration or enlargement or
any change whatever.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL RESTRICTED CERTIFICATED
NOTES ONLY.]
In connection with any transfer of this Note occurring prior to the date
which is later of (i) two years after the later of the original issuance of this
Note or the last date on which this Note was held by the Company or an Affiliate
of the Company and (ii) such later date as may be required by
A-9
applicable law, the undersigned Holder confirms that without utilizing any
general solicitation or general advertising that:
[Check one]
[ ] (a) Such Note is being transferred by the undersigned Holder to a person
reasonably believed to be a "qualified institutional buyer," as defined
in Rule 144A under the U.S. Securities Act of 1933, pursuant to the
exemption from registration under the U.S. Securities Act of 1933
provided by Rule 144A thereunder, and to whom notice is given that the
transfer is being made in reliance upon Rule 144A.
or
[ ] (b) Such Note is being transferred by the undersigned Holder in a minimum
aggregate principal amount of $100,000 to an institutional investor
reasonably believed to be an "accredited investor," as defined in Rule
501(a)(1), 2), (3) or (7) under the U.S. Securities Act of 1933, and
that the undersigned Holder has been advised by the prospective
transferee that such transferee will hold such Note for its own account
or as a fiduciary or agent for others (each of which is also such an
institutional accredited investor, unless such transferee is a bank (as
defined in Section 3(a)(2) of the Securities Act or a savings and loan
association or other institution as described in Section 3(a)(5)(A) of
the Securities Act, whether acting in its individual capacity or in a
fiduciary capacity)), for investment purposes and not with a view to, or
for offer or sale in connection with, any distribution in violation of
the U.S. Securities Act of 1933.
or
[ ] (c) Such Note is being transferred by the undersigned Holder to a person
reasonably believed not to be a U.S. person, as defined in Regulation S
under the U.S. Securities Act of 1933, in an "offshore transaction," as
defined in Regulation S under the U.S. Securities Act of 1933, pursuant
to the exemption from registration under the U.S. Securities Act of 1933
provided by Regulation S thereunder.
or
[ ] (d) Such Note is being transferred by the undersigned Holder pursuant to an
effective registration statement under the U.S. Securities Act of 1933.
or
[ ] (e) Such Note is being transferred pursuant to an exemption from the
registration requirements of the U.S. Securities Act of 1933 provided by
Rule 144.
or
[ ] (f) Such Note is being transferred pursuant to any other available exemption
from the registration requirements of the U.S. Securities Act of 1933.
or
[ ] (g) Such Note is being transferred to Xxxx Food Company, Inc. or any
affiliate, as defined under the U.S. Securities Act of 1933.
If none of the foregoing boxes is checked by the undersigned Holder, or if
the undersigned Holder has failed to delivery any certificate to the Company
required pursuant to First Supplemental Indenture, the Trustee or other Security
Registrar shall not be obligated to register this Note in the name of any Person
other than the Noteholder hereof unless and until the conditions to any such
transfer or registration set forth herein and in Section 211 of the First
Supplemental Indenture shall have been satisfied.
A-10
EXHIBIT B
FORM OF GLOBAL NOTE
[IF THIS IS A RESTRICTED GLOBAL NOTE, ADD THE FOLLOWING LEGEND: THE NOTES
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR
ANY INTEREST HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF THAT REGISTRATION OR
UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A ("RULE 144A") UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (2) AGREES NOT TO OFFER, SELL
OR OTHERWISE TRANSFER THIS NOTE PRIOR TO THE DATE WHICH IS THE LATER OF (X) TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE
SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE NOTES AND THE
LAST DATE ON WHICH XXXX FOOD COMPANY, INC. OR ANY "AFFILIATE" (AS DEFINED IN
RULE 144 UNDER THE SECURITIES ACT) OF XXXX FOOD COMPANY, INC. WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) OR (Y) SUCH LATER DATE, IF ANY, AS
MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE")
EXCEPT (A) TO XXXX FOOD COMPANY, INC., (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPHS (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER
INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (F) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (G)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO COMPLIANCE WITH
ANY APPLICABLE STATE OR OTHER SECURITIES LAWS, AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT (I) PRIOR TO ANY SALE OR TRANSFER PURSUANT
TO CLAUSE (E) A CERTIFICATE OF TRANSFER (THE FORM OF WHICH MAY BE OBTAINED FROM
THE TRUSTEE) IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO XXXX FOOD
B-1
COMPANY, INC. AND THE TRUSTEE AND (II) XXXX FOOD COMPANY, INC. AND THE TRUSTEE
SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSE (D), (E), (F) OR (G) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND
WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE NOTE EVIDENCED HEREBY
PURSUANT TO CLAUSE 2(B) ABOVE OR UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "UNITED STATES,"
"OFFSHORE TRANSACTION," AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT.]
B-2
No. ____________ CUSIP No. ____________
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange or payment, and any certificate
issued in exchange for this certificate or any portion hereof is registered in
the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), any transfer,
pledge or other use hereof for value or otherwise by or to any person is
wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest
herein. INC.
[RULE 144A GLOBAL NOTE]
[REGULATION S GLOBAL NOTE]
[UNRESTRICTED GLOBAL NOTE]
representing up to and including
US$400,000,000
7 1/4% Senior Notes due 2009'>XXXX FOOD COMPANY, INC.
[RULE 144A GLOBAL NOTE]
[REGULATION S GLOBAL NOTE]
[UNRESTRICTED GLOBAL NOTE]
representing up to and including
US$400,000,000
7 1/4% Senior Notes due 2009Dole Food Company, Inc., a Delaware corporation,
(the "COMPANY," which term includes any successor Person under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
Cede & Co., c/o the Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or registered assigns, the principal sum set forth on Schedule 1
hereto on May 1, 2009 (the "STATED MATURITY DATE"), unless redeemed prior to
such date in accordance with the provisions referred to on the reverse hereof
(the Stated Maturity Date or date of earlier redemption, as the case may be, is
referred to herein as the "Maturity Date" with respect to the principal
repayable on such date), and to pay interest on the outstanding principal sum of
this Note from April 30, 2002 or from the most recent "INTEREST PAYMENT Date" to
which interest has been paid or duly provided for, semiannually on May 1 and
November 1 of each year, commencing November 1, 2002, and on the Maturity Date,
at the rate of 7 1/4% per annum, until the principal hereof and Make-Whole
Amount (as defined in the Indenture), if any, applicable hereto is paid or duly
provided for; provided that if any Registration Default with respect to this
Note occurs under the Registration Rights Agreement, then as provided in the
Registration Rights Agreement, the per annum interest rate on this Note will
increase for the period from the occurrence of such Registration Default until
such time as no Registration Default is in effect with respect to this Note (at
which time the interest rate will be reduced to its initial rate). The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on the "REGULAR RECORD DATE" for such interest, which shall be the
April 15 or October 15 (whether or not a Business Day, as defined below), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and shall be payable as provided in the
Indenture.
B-3
The Company will at all times appoint and maintain a Paying Agent (which
may be the Trustee) authorized by the Company to pay the principal of and
Make-Whole Amount, if any, and interest on any Notes on behalf of the Company
and having an office or agency in The City of New York and in such other cities,
if any, as the Company may designate in writing to the Trustee (the "PLACE OF
PAYMENT") where Notes may be presented or surrendered for payment and where
notices, designations or requests in respect for payments with respect to Notes
may be served. The Company has initially appointed X. X. Xxxxxx Trust
Association, National Association, as such Paying Agent.
Interest payments on this Note will be computed and paid on the basis of a
360-day year of twelve 30-day months. Interest payable on this Note on any
Interest Payment Date and on the Maturity Date will include interest accrued
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for (or from and including April 30, 2002, if no
interest has been paid on this Note) to but excluding such Interest Payment Date
or the Maturity Date, as the case may be.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, principal, Make-Whole Amount and/or interest payable with
respect to such Interest Payment Date or Maturity Date, as the case may be, will
be paid on the next succeeding Business Day with the same force and effect as if
it were paid on the date such payment was due, and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or the Maturity Date, as the case may be, to the next succeeding Business Day.
"BUSINESS DAY" means any day, other than Saturday or Sunday, that is neither a
legal holiday nor a day on which commercial banks are authorized or required by
law, regulation or executive order to close in The City of New York or San
Francisco.
The principal, Make-Whole Amount and interest payable on this Note will be
made by wire transfer of immediately available funds to the Holder hereof in
such currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
XXXX FOOD COMPANY, INC.
By:
------------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
B-4
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
X. X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Signatory
Dated:
------------------
B-5
[FORM OF REVERSE OF GLOBAL NOTE]
XXXX FOOD COMPANY, INC.
7 1/4% Senior Note due 2009'>[FORM OF REVERSE OF GLOBAL NOTE]
XXXX FOOD COMPANY, INC.
7 1/4% Senior Note due 2009This Note is one of a duly authorized issue of notes
of the Company (herein called the "NOTES"), issued under an Indenture dated as
of July 15, 1993, as supplemented by the First Supplemental Indenture dated as
of April 30, 2002 (as so supplemented, the "INDENTURE") among the Company and X.
X. Xxxxxx Trust Company, National Association, as Trustee (the "TRUSTEE," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated as the "7 1/4% Senior Notes due 2009" (the
"Notes"), limited initially in aggregate principal amount to US$400,000,000.
Capitalized terms used herein but not defined have the meanings ascribed to such
terms in the Indenture.
This Note is not subject to any sinking fund.
The Indenture provides that the Notes are redeemable at any time in whole,
or from time to time in part, at a Redemption Price (as defined in the
Indenture) equal to the sum of 100% of the aggregate principal amount of the
Notes redeemed, unpaid interest accrued on those Notes to the Redemption Date
(as defined in the Indenture) and the Make-Whole Amount, if any, applicable
thereto; provided, however, that installments of interest on Notes due on an
Interest Payment Date which occurs on or before any Redemption Date shall be
payable to the Holders of such Notes who were registered Holders as of the close
of business on the Regular Record Date immediately preceding such Interest
Payment Date. The Notes are redeemable on not less than 30 nor more than 60
calendar days' prior written notice.
In case an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be, and in certain cases shall be,
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Note or (ii) certain respective covenants and Events
of Default with respect to this Note, in each case upon compliance with certain
conditions set forth therein, which provisions apply to the Notes.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement in accordance with its terms.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority of the principal amount of each series of Securities at
the time Outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority of the principal amount of the
Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note or
Notes issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
B-6
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and Make-Whole Amount, if
any, and interest on this Note at the times, places and rate, and in the
currency herein prescribed.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, the transfer of this Note is registrable in the Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company in the Place of Payment, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by, the Holder hereof or its attorney duly
authorized in writing, and thereupon one or more new Notes and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, Notes are exchangeable for the same aggregate principal
amount of Notes and of like tenor and authorized denominations, as requested by
the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any Note,
or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, of the
Company or of any successor thereto, either directly or through the Company or
any successor thereto.
This Note and the Indenture are governed by and construed in accordance
with the internal laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
B-7
SCHEDULE 1
SCHEDULE OF CHANGES IN OUTSTANDING PRINCIPAL AMOUNT
The following notations in respect of changes in the outstanding principal
amount of this Global Note have been made:
CHANGE IN OUTSTANDING NEW NOTATION
DATE INITIAL PRINCIPAL AMOUNT PRINCIPAL AMOUNT BALANCE MADE BY
---- ------------------------ --------------------- ------- --------
B-8
EXHIBIT C
FORM OF TRANSFER/EXCHANGE CERTIFICATE
FOR TRANSFER/EXCHANGE FROM RESTRICTED CERTIFICATED
NOTE TO BENEFICIAL INTERESTS IN A RULE 144A GLOBAL NOTE
(TRANSFERS AND EXCHANGES PURSUANT TO Section 211(a)(I)(a) OF THE
FIRST SUPPLEMENTAL INDENTURE)
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION
[ADDRESS]
RE: 7 1/4% SENIOR NOTES DUE 2009 OF XXXX FOOD COMPANY, INC. (THE "NOTES")
Reference is hereby made to the Indenture, dated as of July 15, 1993, as
supplemented by the First Supplemental Indenture dated as of April 30, 2002 (as
supplemented, the "Indenture"), among Xxxx Food Company, Inc. (the "Company")
and X.X. Xxxxxx Trust Company, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$ _________ principal amount of Restricted
Certificated Notes presented or surrendered on the date hereof (the "Surrendered
Notes") which are registered in the name of [insert name of
transferor/exchanger] (the "Transferor"). The Transferor has requested a
transfer or exchange of such Surrendered Notes to a person that will take
delivery thereof in the form of beneficial interests in one or more Rule 144A
Global Notes (CUSIP [ISIN] No. __________).
In connection with such request and in respect of such Surrendered Notes,
the Transferor does hereby certify that such transfer or exchange is being
effected pursuant to and in accordance with Rule 144A under the Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, the Transferor
does hereby further certify that the Surrendered Notes are being transferred to
a person that the Transferor reasonably believes is purchasing the Surrendered
Notes for its own account, or for one or more accounts with respect to which
such person exercises sole investment discretion, and such person and each such
account is a "qualified institutional buyer" within the meaning of Rule 144A to
whom notice has been given that the transfer is being made in reliance on Rule
144A, in each case in a transaction meeting the requirements of Rule 144A, and
in accordance with any applicable securities laws of any state of the United
States or any other jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the initial purchasers, if any, of
the initial offering of such Notes being transferred or exchanged.
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated:
------------
cc: XXXX FOOD COMPANY, INC.
C-1
EXHIBIT D
FORM OF TRANSFER/EXCHANGE CERTIFICATE
FOR TRANSFER/EXCHANGE FROM RESTRICTED CERTIFICATED
NOTE TO BENEFICIAL INTERESTS IN A REGULATION S GLOBAL NOTE
(TRANSFERS AND EXCHANGES PURSUANT TO Section 211(a)(I)(B) OF THE
FIRST SUPPLEMENTAL INDENTURE)
X.X. Xxxxxx Trust Company, National Association
[Address]
RE: 7 1/4% SENIOR NOTES DUE 2009 OF XXXX FOOD COMPANY (THE "NOTES")
Reference is hereby made to the Indenture, dated as of July 15, 1993, as
supplemented by the First Supplemental Indenture dated as of April 30, 2002 (as
supplemented, the "Indenture"), among Xxxx Food Company, Inc. (the "Company")
and X.X. Xxxxxx Trust Company, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$________ principal amount of Restricted
Certificated Notes presented or surrendered on the date hereof (the "Surrendered
Notes") which are registered in the name of [insert name of
transferor/exchanger] (the "Transferor"). The Transferor has requested a
transfer or exchange of such Surrendered Notes to a person that will take
delivery thereof in the form of beneficial interests in one or more Regulation S
Global Notes (CUSIP [ISIN] No. ___________ ) [include if the transfer is made
during the Distribution Compliance Period: which amount, immediately after such
transfer, is to be held with the Depositary through Euroclear or Clearstream or
both (Common Code: ___________ ) until [40 days after the Closing Date].
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer or exchange has been effected
pursuant to and in accordance with Rule 903 or Rule 904 (as applicable) under
the Securities Act of 1933, as amended (the "Securities Act"), and accordingly
the Transferor does hereby further certify that:
(1) the offer of the Notes was not made to a U.S. person;
(2) either:
(A) at the time the buy order was originated, the transferee or
exchangee was outside the United States or the Transferor and any
person acting on its behalf reasonably believed that the
transferee or exchangee was outside the United States, or
(B) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(a) or 904(a) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) [include if the transfer is made during the Distribution Compliance
Period: upon completion of the transaction, the Notes being
transferred as described above are to be held with the Depositary
through Euroclear or Clearstream or both (Common Code) until 40 days
after the Closing Date].
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the initial purchasers, if any, of
the initial offering of such Notes being transferred or
D-1
exchanged. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated:
------------------
cc: XXXX FOOD COMPANY, INC.
D-2
EXHIBIT E
FORM OF TRANSFER/EXCHANGE CERTIFICATE
FOR TRANSFER/EXCHANGE FROM RULE 144A GLOBAL
NOTE TO BENEFICIAL INTERESTS IN A REGULATION S GLOBAL NOTE
(TRANSFERS AND EXCHANGES PURSUANT TO Section 211(a)(II)(A) OF THE
FIRST SUPPLEMENTAL INDENTURE)
X.X. Xxxxxx Trust Company, National Association
[Address]
RE: 7 1/4% SENIOR NOTES DUE 2009 OF XXXX FOOD COMPANY, INC. (THE "NOTES")
Reference is hereby made to the Indenture, dated as of July 15, 1993, as
supplemented by the First Supplemental Indenture dated as of April 30, 2002 (as
supplemented, the "Indenture"), among Xxxx Food Company, Inc. (the "Company"),
and X.X. Xxxxxx Trust Company, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$ __________ principal amount of Notes which are
evidenced by one or more Rule 144A Global Notes (CUSIP No. ___________) and held
with the Depositary and its participants for [insert name of
transferor/exchanger] (the "Transferor"). The Transferor has requested a
transfer or exchange of such beneficial interest in the Rule 144A Global Notes
to a person who will take delivery thereof in the form of beneficial interests
in one or more Regulation S Global Notes (CUSIP [ISIN] No. ________ and Common
Code # ____________) [include if the transfer is made during the Distribution
Compliance Period: which amount, immediately after such transfer, is to be held
with the Depositary through Euroclear or Clearstream or both until 40 days after
the Closing Date].
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer or exchange has been effected
pursuant to and in accordance with Rule 903 or Rule 904 (as applicable) under
the Securities Act of 1933, as amended (the "Securities Act"), and accordingly
the Transferor does hereby further certify that:
(1) the offer of the Notes was not made to a U.S. person;
(2) either:
(A) at the time the buy order was originated, the transferee or
exchangee was outside the United States or the Transferor and any
person acting on its behalf reasonably believed that the
transferee or exchangee was outside the United States, or
(B) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made by the Transferor or any
person acting on its behalf in contravention of the requirements of
Rule 903(a)(2) or 904(a)(2) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) [include if the transfer is made during the Distribution Compliance
Period: upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the Depositary
through Euroclear or Clearstream or both until 40 days after the
Closing Date].
F-1
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the initial purchasers, if any, of
the initial offering of such Notes being transferred or exchanged. Terms used in
this certificate and not otherwise defined in the Indenture have the meanings
set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated:
--------------
cc: XXXX FOOD COMPANY, INC.
F-2
EXHIBIT F
FORM OF TRANSFER/EXCHANGE CERTIFICATES
FOR TRANSFER/EXCHANGE FROM REGULATION S GLOBAL
NOTE TO BENEFICIAL INTERESTS IN A RULE 144A GLOBAL NOTE
(TRANSFERS AND EXCHANGES PURSUANT TO Section 211(b) OF THE FIRST
SUPPLEMENTAL INDENTURE)
[TRANSFEROR CERTIFICATE]
X.X. Xxxxxx Trust Company, National Association
[Address]
RE: 7 1/4% SENIOR NOTES DUE 2009 OF XXXX FOOD COMPANY, INC. (THE "NOTES")
Reference is hereby made to the Indenture, dated as of July 15, 1993, as
supplemented by the First Supplemental Indenture dated as of April 30, 2002 (as
supplemented, the "Indenture"), among Xxxx Food Company, Inc. (the "Company")
and X.X. Xxxxxx Trust Company, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$ _____________ principal amount of Notes which
are evidenced by one or more Regulation S Global Notes (ISIN No. ____________)
(Common Code: ___________) and held with the Depositary through [Euroclear]
[Clearstream] for [insert name of transferor/exchanger] (the "Transferor"). The
Transferor has requested a transfer or exchange of such beneficial interest in
the Regulation S Global Notes to a person that will take delivery thereof (the
"Transferee") in the form of beneficial interests in one or more Rule 144A
Global Notes (CUSIP No. ________).
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that the transfer or exchange is to a QIB
purchasing the Notes for its own account or for the accounts of one or more QIBs
as to which it exercises sole investment discretion, in a transaction meeting
the requirements of Rule 144A, and to whom notice has been given that the
transfer as being made in reliance upon Rule 144A, in each case, in accordance
with any applicable securities laws of any state of the United States or any
other jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the initial purchasers, if any, of
the initial offering of such Notes being transferred or exchanged.
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated:
-----------------
cc: XXXX FOOD COMPANY, INC.
H-1
EXHIBIT G
FORM OF PURCHASER'S LETTER
Xxxx Food Company, Inc.
c/o X.X. Xxxxxx Trust Company, National Association
00 Xxxxx Xx., Xxxxx Xxxxxxxx
Securities Window, Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
In connection with our proposed purchase of $_________ aggregate principal
amount of the 7 1/4% Notes due 2009 (the "Notes") of Xxxx Food Company, Inc., a
Delaware corporation, we confirm that:
(i) we are an institutional "accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act") (an "institutional accredited
investor");
(ii) any purchase of the notes by us will be for our own account or for
the account of one or more other institutional accredited investors
for which we exercise sole investment discretion;
(iii) in the event that we purchase any of the notes, we will acquire notes
having a minimum purchase price of not less than $100,000, in each
case for our own account or for any separate account for which we are
acting;
(iv) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of
purchasing the notes;
(v) we are not acquiring the notes with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities
Act; and
(vi) we have received a copy of the offering memorandum and acknowledge
that we have had access to such financial and other information, and
have been afforded the opportunity to ask such questions of
representatives of the Company and receive answers thereto, as we
deem necessary in connection with our decision to purchase the notes.
We understand that the notes are being offered in a transaction not
involving any public offering within the United States within the meaning of the
Securities Act and that the notes have not been registered under the Securities
Act, and we agree, on our own behalf and on behalf of each account for which we
acquire any notes, that if in the future we decide to offer, resell, pledge or
otherwise transfer such notes, such notes may be offered, resold, pledged or
otherwise transferred only (i) to the Company or any of its subsidiaries, (ii)
to a person whom we reasonably believe is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act), (iii) to a person whom we
reasonably believe is an institutional accredited investor in a transaction in
which the institutional accredited investor, prior to the transfer, furnishes to
the trustee a signed letter substantially in the form of this letter, (iv)
outside the United States in a transaction in accordance with Rule 904 under the
Securities Act, (v) pursuant to an exemption from registration provided by Rule
144 under the Securities Act (if available), (vi) pursuant to any other
available exemption from the registration requirements of the Securities Act or
(vii) pursuant to an effective registration statement under the Securities Act,
in each of cases (i) through (vii), in accordance with any applicable securities
laws of any state of the United States or any other applicable jurisdiction. We
understand that, prior to any transfer referred to in clause (iii), (iv), (v) or
(vi) of the preceding sentence, we must furnish to the trustee for the notes
such certifications, legal opinions and other information as the Company may
I-1
reasonably require 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.
We acknowledge that you, the Company and others will rely upon our
confirmations, acknowledgements and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Date: ----------------------------------------
------------------------------ (Name of Purchaser)
By:
------------------------------------
Name:
Title:
Address:
Upon transfer or exchange the Notes would be registered in the name of the
new owner as follows:
TAXPAYER I.D.
NAME ADDRESS NUMBER
---- ------- -------------
I-2
QuickLinks
RECITALS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
ARTICLE TWO TITLE AND TERMS OF THE NOTES
ARTICLE THREE AMENDMENT
ARTICLE FOUR MISCELLANEOUS PROVISIONS
FORM OF FACE OF CERTIFICATED NOTE
CERTIFICATE OF AUTHENTICATION
ABBREVIATIONS
ASSIGNMENT
FORM OF GLOBAL NOTE
Certificate of Authentication
SCHEDULE OF CHANGES IN OUTSTANDING PRINCIPAL AMOUNT
FORM OF TRANSFER/EXCHANGE CERTIFICATE FOR TRANSFER/EXCHANGE FROM RESTRICTED
CERTIFICATED NOTE TO BENEFICIAL INTERESTS IN A RULE 144A GLOBAL NOTE (Transfers
and exchanges pursuant to Section 211(a)(i)(A) of the First Supplemental
Indenture)
FORM OF TRANSFER/EXCHANGE CERTIFICATE FOR TRANSFER/EXCHANGE FROM RESTRICTED
CERTIFICATED
NOTE TO BENEFICIAL INTERESTS IN A REGULATION S GLOBAL NOTE (Transfers and
exchanges pursuant to Section 211(a)(i)(B) of the First Supplemental Indenture)
FORM OF TRANSFER/EXCHANGE CERTIFICATE FOR TRANSFER/EXCHANGE FROM RULE
144A GLOBAL NOTE TO BENEFICIAL INTERESTS IN A REGULATION S GLOBAL NOTE
(Transfers and exchanges pursuant to Section 211(a)(ii)(A) of the First
Supplemental Indenture)
FORM OF TRANSFER/EXCHANGE CERTIFICATES FOR TRANSFER/EXCHANGE FROM
REGULATION S GLOBAL
NOTE TO BENEFICIAL INTERESTS IN A RULE 144A GLOBAL NOTE
(Transfers and exchanges pursuant to Section 211(b) of the First Supplemental
Indenture) [Transferor Certificate]
FORM OF PURCHASER'S LETTER
