EXHIBIT 10.3
EXECUTION COPY
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INDENTURE SUPPLEMENT
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LEVI XXXXXXX RECEIVABLES FUNDING, LLC
as Issuer
CITIBANK, N.A.
as Indenture Trustee,
Paying Agent, Authentication Agent and
Transfer Agent and Registrar
SERIES 2001-A INDENTURE SUPPLEMENT
Dated as of July 31, 2001
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ARTICLE I
CREATION OF THE SERIES 2001-A NOTES
Section 1.01 Designation............................................................................1
ARTICLE II
DEFINITIONS
Section 2.01 Definitions............................................................................2
ARTICLE III
SERVICING FEE
Section 3.01 Servicing Fee..........................................................................8
ARTICLE IV
RIGHTS OF SERIES 2001-A NOTEHOLDERS AND ALLOCATION AND
APPLICATION OF POOL COLLECTIONS
Section 4.01 Pool Collections and Allocations.......................................................9
Section 4.02 Determination of Monthly Interest.....................................................10
Section 4.03 Determination of Principal Distribution...............................................10
Section 4.04 Application of Collections on Deposit in the Series 2001-A Expense Subaccount and
Principal Subaccount..................................................................11
Section 4.05 [Reserved]............................................................................11
Section 4.06 Series 2001-A Expense Subaccount......................................................11
Section 4.07 Series 2001-A Principal Subaccount....................................................12
Section 4.08 Determination of LIBOR................................................................13
Section 4.09 Investment Instructions...............................................................13
ARTICLE V
DELIVERY OF SERIES 2001-A NOTE DISTRIBUTIONS; REPORTS TO SERIES
2001-A NOTEHOLDERS
Section 5.01 Delivery and Payment for the Series 2001-A Notes; Denominations.......................13
Section 5.02 Registration; Registration of Transfer and Exchange; Transfer Restrictions............14
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Section 5.03 Global Notes..........................................................................18
Section 5.04 Regulation S Global Notes.............................................................18
Section 5.05 Special Transfer Provisions...........................................................20
Section 5.06 CUSIP Numbers.........................................................................21
Section 5.07 Distributions.........................................................................22
Section 5.08 Reports and Statements to Series 2001-A Noteholders...................................22
ARTICLE VI
AMORTIZATION EVENTS
Section 6.01 Series 2001-A Amortization Events.....................................................23
ARTICLE VII
OPTIONAL REDEMPTION OF SERIES 2001-A NOTES
Section 7.01 Optional Redemption of Series 2001-A Notes............................................25
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Ratification of Agreement.............................................................25
Section 8.02 Counterparts..........................................................................26
Section 8.03 Governing Law.........................................................................26
Section 8.04 No Petition; Limited Recourse.........................................................26
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EXHIBITS
EXHIBIT A-1 FORM OF RULE 144A GLOBAL NOTE
EXHIBIT A-2 FORM OF TEMPORARY REGULATION S GLOBAL NOTE
EXHIBIT A-3 FORM OF PERMANENT REGULATION S GLOBAL NOTE
EXHIBIT B [RESERVED]
EXHIBIT C FORM OF MONTHLY STATEMENT
EXHIBIT D [RESERVED]
EXHIBIT E-1 FORM OF EUROCLEAR AND CLEARSTREAM BANKING
CERTIFICATE
EXHIBIT E-2 FORM OF CERTIFICATE TO BE GIVEN BY HOLDER OF
BENEFICIAL INTEREST IN A TEMPORARY
REGULATION S GLOBAL NOTE
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SERIES 2001-A INDENTURE SUPPLEMENT, dated as of July 31, 2001
(as amended, modified, restated or supplemented from time to time, the
"Indenture Supplement"), by and among LEVI XXXXXXX RECEIVABLES FUNDING, LLC, a
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limited liability company organized under the laws of the State of Delaware, as
Issuer (together with its permitted successors and assigns, the "Issuer"), LEVI
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XXXXXXX FINANCIAL CENTER CORPORATION, a California corporation, in its capacity
as servicer (the "Servicer") and Citibank, N.A., a national banking association
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("Citibank"), as Indenture Trustee (together with its permitted successors and
assigns, the "Indenture Trustee"), and in its separate capacities as paying
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agent, authentication agent and transfer agent and registrar.
Pursuant to Section 2.10 of the Master Indenture, dated as of
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July 31, 2001 (as amended, modified, restated or supplemented from time to time,
the "Indenture" and together with the Indenture Supplement, the "Agreement"), by
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and between the Issuer and the Indenture Trustee, the Issuer may issue one or
more Series of Notes the Principal Terms of which shall be set forth in an
indenture supplement to the Indenture. In accordance with the terms of the
Indenture, the Issuer hereby creates a Series of Notes and specifies the
Principal Terms of such Series of Notes in this Indenture Supplement.
GRANTING CLAUSES
The Issuer hereby Grants to the Indenture Trustee, for the
benefit of the Series 2001-A Noteholders, all of the Issuer's right, title and
interest, whether now owned or hereafter acquired, in, to and under: (i) the
Series 2001-A Expense Subaccount; (ii) the Series 2001-A Principal Subaccount,
(iii) all accounts, money, chattel paper, investment property, instruments,
documents, deposit accounts, certificates of deposit, letters of credit, advices
of credit, general intangibles and goods consisting of, arising from or relating
to any of the foregoing and (iv) all proceeds of the foregoing.
ARTICLE I
CREATION OF THE SERIES 2001-A NOTES
Section 1.01 Designation.
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(a) There is hereby created a Series of Notes to be issued pursuant to
the Indenture and this Indenture Supplement to be known as the "Levi Xxxxxxx
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Receivables Funding Secured Term Notes, Series 2001-A" or the "Series 2001-A
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Notes."
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(b) In the event that any term or provision contained herein shall
conflict with or be inconsistent with any term or provision contained in the
Indenture, the terms and provisions of this Indenture Supplement shall be
controlling.
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ARTICLE II
Definitions
Section 2.01 Definitions.
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(a) Whenever used in this Indenture Supplement, the following words and
phrases shall have the following meanings, and the definitions of such terms are
applicable to the singular as well as the plural forms of such terms and the
masculine as well as the feminine and neuter genders of such terms.
"Additional Interest" shall have the meaning set forth in
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Section 4.02(b).
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"Adjusted Applicable Payment Terms" shall mean, as of any date
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of determination, the sum of (i) the weighted average of the Applicable Payment
Terms (after giving effect to any extensions of such terms permitted under
clause (i) of the definition of Eligible Receivable) for all Receivables
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outstanding as of the last day of the most recent Monthly Period plus (ii) 60.
"Adjusted Servicing Fee Rate" shall mean, as of any date of
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determination, the Servicing Fee Rate times a fraction, the numerator of which
equals the ending Aggregate Receivables Balance for the related Monthly Period
and the denominator of which equals the aggregate principal amount of all Notes
Outstanding as of the end of the related Monthly Period.
"Amortization Event" shall have the meaning set forth in
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Section 6.01.
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"Amortization Monthly Principal" shall have the meaning set
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forth in Section 4.03.
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"Amortization Period" shall mean the period commencing at the
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earlier to occur of (a) the close of business on August 14, 2004 and (b) the
close of business on the Business Day immediately preceding the day on which an
Amortization Event has been declared or deemed to have automatically occurred
pursuant to Section 6.01, and ending on the date on which the Series Outstanding
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Amount shall have been paid in full, together with all accrued interest thereon.
"Applicable Reserve Ratio" shall mean, as of any date of
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determination, the greater of (i) the Minimum Reserve Ratio and (ii) the sum of
the Loss Reserve Ratio and the Dilution Reserve Ratio.
"Applicable Stress Factor" shall mean, as of any date of
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determination, 2.5.
"Average Days Outstanding" shall mean, as of the end of any
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Monthly Period, the average number of days Receivables have been outstanding as
of the end of such Monthly Period, calculated in accordance with the following
formula:
ADO = 91 x (ARB / AOB), where
ADO = Average Days Outstanding;
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ARB = the Aggregate Receivables Balance as of the
end of such Monthly Period; and
AOB = the aggregate original Unpaid Balances of
all Receivables generated during the three
consecutive Monthly Periods then ending.
"Average Dilution Ratio" shall mean, as of any date of
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determination, the average of the Dilution Ratios occurring during the twelve
most recent Monthly Periods preceding the date of calculation.
"Custodian" shall mean the entity maintaining possession of
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the Global Notes for the Clearing Agency.
"Default Ratio" shall mean, for any Monthly Period, the
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quotient, expressed as a percentage, of (a) the sum of the aggregate Unpaid
Balance of all Receivables less than 91 days past due that have become Defaulted
Receivables during such Monthly Period plus the aggregate Unpaid Balances of all
Receivables which are unpaid in full or in part for at least 91 days but not
more than 120 days after their original due date (which Unpaid Balances shall be
calculated without giving effect to any reduction caused by credit memos not
associated with such Receivables divided by (b) the aggregate Unpaid Balance of
the Receivables generated during the fourth Monthly Period preceding such
Monthly Period (i.e., so that the denominator of the ratio for the month of
March will be the Receivables generated in November).
"Dilution Horizon Factor" shall mean, for any Record Date, a
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fraction the numerator of which equals the sum of (i) the aggregate principal
amount of Receivables originated during the most recent Monthly Period and (ii)
fourteen-thirtieths (14/30) times the aggregate principal amount of Receivables
originated during the preceding Monthly Period and the denominator of which
equals the Net Eligible Receivables Balance as of the end of the most recent
Monthly Period.
"Dilution Ratio" shall mean, for any Monthly Period, the
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quotient, expressed as a percentage, of (a) the aggregate amount of reductions
to the Unpaid Balances of the Receivables due to Dilutive Credits occurring
during such Monthly Period divided by (b) the aggregate Unpaid Balance of the
Receivables generated during the immediately preceding Monthly Period.
"Dilution Reserve Ratio" shall mean, as of any date of
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determination, a percentage calculated in accordance with the following formula:
DRR = (SF x ADR) + [(HDR-ADR) x (HDR/ADR)]] x DHF,
where
DRR = the Dilution Reserve Ratio;
SF = the Applicable Stress Factor;
ADR = the Average Dilution Ratio;
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HDR = the highest Dilution Ratio occurring during the
twelve most recent Monthly Periods preceding the
date of calculation; and
DHF = the Dilution Horizon Factor for the Monthly
Period preceding the date of calculation.
"Distribution Compliance Period" shall have the meaning set
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forth in Rule 902 of Regulation S.
"DWAC" shall mean Deposit and Withdrawal At Custodian Service.
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"Exemptions" shall mean Prohibited Transaction Class Exemption
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("PTCE") 96-23, regarding transactions effected by "in-house asset managers";
XXXX 00-0, regarding investments by insurance company pooled separate accounts;
PTCE 95-60, regarding investments by insurance company general accounts; PTCE
91-38 regarding investments by bank collective investment funds; PTCE 84-14,
regarding transactions effected by "qualified professional asset managers"; and
XXXX 00-0, regarding purchases between a Plan and certain individuals that are
registered broker-dealers.
"Final Stated Maturity Date" shall mean the Payment Date
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occurring in November, 2005.
"Initial Purchaser" shall mean Banc One Capital Markets, Inc.
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"Initial Series Outstanding Amount" shall mean, with respect
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to the Series 2001-A Notes, $110,000,000.
"Interest Period" shall mean, with respect to any Payment
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Date, the period beginning on and including the Payment Date immediately
preceding such Payment Date (or, in the case of the first Payment Date,
beginning on and including the Series 2001-A Closing Date) and ending on and
excluding such Payment Date.
"Interest Shortfall" shall have the meaning set forth in
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Section 4.02(b).
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"LIBOR" shall mean, for any Interest Period, as of any LIBOR
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Determination Date, the London interbank offered rate for deposits in United
States dollars for a one-month period determined by the Paying Agent for each
Interest Period in accordance with the provisions of Section 4.08.
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"LIBOR Determination Date" shall mean the second London
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Business Day prior to the commencement of the second and each subsequent
Interest Period.
"London Business Day" shall mean any Business Day on which
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dealings in deposits in U.S. dollars are transacted in the London interbank
market and banking institutions in London are not authorized or obligated by law
or regulation to close.
"Loss Horizon Factor" shall mean, as of the end of any Monthly
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Period, (i) the product of (x) the aggregate Unpaid Balance of the Receivables
generated over the 3 Monthly
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Periods then ending times (y) a fraction, the numerator of which equals the
Adjusted Applicable Payment Terms and the denominator of which equals 90 divided
by (ii) the Net Eligible Receivables Balance as of the end of such Monthly
Period.
"Loss Reserve Ratio" shall mean, as of any date of
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determination, a percentage calculated in accordance with the following formula:
LRR = (LHF x ARR) x SF, where
LRR = the Loss Reserve Ratio;
LHF = the Loss Horizon Factor;
ARR = the highest three-month rolling average of the
Default Ratios occurring during the twelve most
recent calendar months; and
SF = the Applicable Stress Factor.
"Minimum Reserve Ratio" shall mean, as of any date of
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determination, the sum of (x) 18% and (y) the product of the Average Dilution
Ratio times the Dilution Horizon Factor.
"Monthly Interest" shall have the meaning set forth in Section
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4.02(a).
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"Monthly Period" shall mean the period from and including the
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first day of a calendar month to and including the last day of such calendar
month.
"Monthly Servicing Fee" shall have the meaning set forth in
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Section 3.01.
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"Non-U.S. Certificate" shall have the meaning set forth in
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Section 5.04(b).
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"Note Interest Rate" shall mean, for each Interest Period
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(other than the first Interest Period), a rate of 0.32% per annum in excess of
LIBOR as determined on the related LIBOR Determination Date. The Note Interest
Rate for the first Interest Period will equal 4.095% per annum.
"Offering Memorandum" shall mean the Offering Memorandum
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relating to the Series 2001-A Notes dated July 20, 2001.
"Payment Date" shall mean August 15, 2001 and the fifteenth
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day of each calendar month thereafter, or if such fifteenth day is not a
Business Day, the next succeeding Business Day.
"Permanent Regulation S Global Notes" shall have the meaning
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set forth in Section 5.04(a).
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"QIB" shall have the meaning set forth in Section 5.02(b).
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"Rating Agency" shall mean each of Standard & Poor's Ratings
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Services and Xxxxx'x Investors Service, Inc.
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"Redemption Price" shall mean, with respect to any Payment
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Date, after giving effect to any deposits and distributions otherwise to be made
on such Payment Date, the sum of (i) the Series Outstanding Amount or portion
thereof to be redeemed on such Payment Date plus (ii) Monthly Interest for such
Payment Date and any Monthly Interest previously due but not distributed to the
Series 2001-A Noteholders.
"Reference Banks" shall mean four major banks in the London
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interbank market selected by the Paying Agent.
"Regulation S" shall mean Regulation S under the Securities
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Act.
"Regulation S Certificate" shall have the meaning set forth in
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Section 5.02(e).
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"Regulation S Global Notes" shall mean each of the Temporary
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Regulation S Global Notes and the Permanent Regulation S Global Notes.
"Release Date" shall have the meaning set forth in Section
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5.02(e).
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"Required Amount" shall mean, as of any date of determination,
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the sum of (a) (i) the Monthly Interest to be distributed on the next Payment
Date plus (ii) any Interest Shortfall previously accrued and not reimbursed plus
(iii) any Additional Interest previously accrued and not reimbursed plus (b) the
sum of (i) the Monthly Servicing Fee to be distributed on such Payment Date plus
(ii) any Monthly Servicing Fee previously accrued and not paid.
"Revolving Period" shall mean the period beginning on the
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Series 2001-A Closing Date and ending upon the commencement of the Amortization
Period.
"Rule 144A" shall mean Rule 144A under the Securities Act.
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"Rule 144A Global Notes" shall have the meaning set forth in
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Section 5.03.
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"Securities Act" shall mean the Securities Act of 1933, as
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amended.
"Series Outstanding Amount" shall mean, as of any date of
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determination, an amount equal to the Initial Series Outstanding Amount minus
the amount of Amortization Monthly Principal previously paid to Series 2001-A
Noteholders.
"Series 2001-A" shall mean the Series of Notes the terms of
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which are specified in this Indenture Supplement.
"Series 2001-A Adjusted Principal Amount" shall mean, as of
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any date of determination, (a) the Series Outstanding Amount as of such date
minus (b) the amounts on deposit in the Series 2001-A Principal Subaccount.
"Series 2001-A Allocated Receivables Amount" shall mean, as of
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any date of determination, the Series Floating Allocation Percentage for Series
2001-A times the Net Eligible Receivables Balance as of such date.
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"Series 2001-A Asset Amount Deficiency" shall occur if and to
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the extent the Series 2001-A Allocated Receivables Amount is less than the
Series 2001-A Target Receivables Amount as of such date.
"Series 2001-A Carrying Cost Reserve" shall mean as of any
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date of calculation an amount equal to (A) the product of (i) the Yield Reserve
Ratio times (ii) the Series Outstanding Amount divided by (B) one minus the
Applicable Reserve Ratio.
"Series 2001-A Closing Date" shall mean July 31, 2001.
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"Series 2001-A Collections" shall mean, on any Deposit Date,
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all Collections allocable to the Series 2001-A Notes deposited in the Collection
Account on such Deposit Date pursuant to Section 8.04(c) of the Indenture.
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"Series 2001-A Expense Subaccount" shall have the meaning set
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forth in Section 4.06(a).
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"Series 2001-A Noteholder" shall mean the Person in whose name
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a Series 2001-A Note is registered in the Note Register.
"Series 2001-A Notes" shall mean any one of the Notes executed
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by the Issuer and authenticated by the Authentication Agent, substantially in
the form of Exhibit A-1 and A-2.
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"Series 2001-A Principal Subaccount" shall have the meaning
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set forth in Section 4.07(a).
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"Series 2001-A Required Reserves" shall mean, as of any date
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of determination, an amount equal to the product of (i) the Series Outstanding
Amount multiplied by (ii) a fraction equal to (A) the Applicable Reserve Ratio
as of such date divided by (B) one minus the Applicable Reserve Ratio; provided,
however, that during the Amortization Period for Series 2001-A, the Series
2001-A Required Reserves shall equal the Series 2001-A Required Reserves in
effect on the date the Amortization Period commenced.
"Series 2001-A Target Receivables Amount" shall mean, as of
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any date of determination, the sum of (a) the Series 2001-A Adjusted Principal
Amount as of such date plus (b) the Series 2001-A Required Reserves plus (c) the
Series 2001-A Carrying Cost Reserve.
"Servicing Fee" shall have the meaning set forth in the
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Receivables Purchase Agreement.
"Servicing Fee Rate" shall have the meaning set forth in the
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Receivables Purchase Agreement.
"Telerate Page 3750" shall mean the display page currently so
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designated on the Bridge Telerate Market Report (or such other page as may
replace that page in that service for the purpose of displaying comparable rates
or prices).
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"Temporary Regulation S Global Note" shall have the meaning
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set forth in Section 5.03.
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"Yield Reserve Ratio" shall mean, as of any date of
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determination a percentage calculated in accordance with the following formula:
YRR = [ASFR + (1.5 x NIR)] x [2 x ADO],
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360
where
YRR = the Yield Reserve Ratio;
ASFR = the Adjusted Servicing Fee Rate;
NIR = the Note Interest Rate for the Interest
Period in which the Yield Reserve Ratio is
being determined; and
ADO = the Average Days Outstanding as of the end
of the Monthly Period preceding the first
day of the Interest Period in which the
Yield Reserve Ratio is being determined.
(b) Each capitalized term defined herein shall relate to the
Series 2001-A Notes and no other Series of Notes issued by the Issuer, unless
the context otherwise requires. All capitalized terms used herein and not
otherwise defined herein have the meanings ascribed to them in the Indenture or,
if not defined therein, in the Receivables Purchase Agreement.
(c) The words "hereof," "herein" and "hereunder" and words of
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similar import when used in this Indenture Supplement shall refer to this
Indenture Supplement as a whole and not to any particular provision of this
Indenture Supplement; references to any Article, subsection, Section or Exhibit
are references to Articles, subsections, Sections and Exhibits in or to this
Indenture Supplement unless otherwise specified; and the term "including" means
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"including without limitation."
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ARTICLE III
SERVICING FEE
Section 3.01 Servicing Fee
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The Receivables Purchase Agreement sets forth the full
compensation that the Servicer is entitled to receive for its servicing
activities. The share of the Servicing Fee allocable to the Series 2001-A
Noteholders with respect to any Payment Date to be paid out of the Series 2001-A
Expense Subaccount (the "Monthly Servicing Fee") shall be equal to one-twelfth
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of the product of (a) 0.50% (the "Servicing Fee Rate") multiplied by (b) the
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ending aggregate Unpaid Balance of the Receivables for the related Monthly
Period multiplied by (c) the Series Floating Allocation Percentage for Series
2001-A. The remainder of the Servicing Fee shall be paid by the noteholders of
other Series (as provided in the Indenture Supplement related to such other
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Series) or the Issuer and in no event shall the Indenture Trustee or the Series
2001-A Noteholders be liable for the share of the Servicing Fee to be paid by
the Noteholders of such other Series or the Issuer. To the extent that the
Monthly Servicing Fee is not paid in full pursuant to the preceding provisions
of this Section 3.01 and Section 4.04, it shall be paid by the Issuer. The
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Monthly Servicing Fee shall be payable pursuant to, and subject to the priority
of payments set forth in, Section 4.04.
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ARTICLE IV
RIGHTS OF SERIES 2001-A NOTEHOLDERS
AND ALLOCATION AND APPLICATION OF POOL COLLECTIONS
Section 4.01 Pool Collections and Allocations.
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(a) Allocation of Pool Collections. Funds on deposit in the
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Collection Account in accordance with Section 8.04 of the Indenture shall be
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allocated and distributed to Series 2001-A as set forth in the Indenture and
this Article IV.
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(b) Deposits into the Series 2001-A Expense Subaccount.
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Prior to the close of business on each Deposit Date, if the amount of funds on
deposit in the Series 2001-A Expense Subaccount on such Deposit Date is less
than the Required Amount for such Deposit Date, the Indenture Trustee, at the
direction of the Servicer, shall transfer from the Collection Account to the
Series 2001-A Expense Subaccount an amount equal to the lesser of (A) the amount
of such deficiency or (B) the amount of Collections on deposit in the Collection
Account which are allocable to Series 2001-A under Section 8.04(c)(ii) of the
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Indenture on such Deposit Date.
(c) Withdrawals from the Series 2001-A Expense Subaccount.
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If the amount of funds on deposit in the Series 2001-A Expense Subaccount on
such Deposit Date exceeds the Required Amount for such Deposit Date, the
Indenture Trustee, at the direction of the Servicer, shall withdraw from the
Series 2001-A Expense Subaccount an amount equal to such excess and such funds
shall be treated as Series 2001-A Collections for distribution in accordance
with the remaining provisions of this Section 4.01.
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(d) Deposits into and Withdrawals from the Series 2001-A
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Principal Subaccount During the Revolving Period. On each Deposit Date during
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the Revolving Period on which a Series 2001-A Asset Amount Deficiency has
occurred and is continuing, the Indenture Trustee, at the direction of the
Servicer, shall deposit into the Series 2001-A Principal Subaccount an amount
equal to the lesser of (x) the amount of such Series 2001-A Asset Amount
Deficiency and (y) the amount of Series 2001-A Collections available after any
required deposits to the Series 2001-A Expense Subaccount. On each Deposit Date
during the Revolving Period during which such Series 2001-A Asset Amount
Deficiency no longer exists, the Indenture Trustee, at the direction of the
Servicer, may withdraw any funds on deposit in the Series 2001-A Principal
Subaccount for further application in accordance with the provisions of this
Section 4.01 so long as, after giving effect to such withdrawal and the
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application of funds, a Series 2001-A Asset Amount Deficiency would not occur
and be continuing.
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(e) Deposits into the Series 2001-A Principal Subaccount
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During the Amortization Period. On each Deposit Date during the Amortization
--------------------------------
Period, the Indenture Trustee, at the direction of the Servicer, shall deposit
into the Series 2001-A Principal Subaccount all Series 2001-A Collections
available after any required deposits to the Series 2001-A Expense Subaccount;
provided, however, that the aggregate amount deposited into the Series 2001-A
Principal Subaccount pursuant to this clause shall not exceed the Series
Outstanding Amount on the immediately preceding Payment Date.
(f) Remaining Funds to Issuer. All remaining Series 2001-A
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Collections and other amounts drawn from the Series 2001-A Expense Subaccount
pursuant to paragraph (c) above not distributed pursuant to the foregoing
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provisions shall be released to the Issuer; provided, that if on such date an
Asset Amount Deficiency is occurring with respect to any other Series of Notes,
the Issuer shall direct the Servicer not to release such funds and the Indenture
Trustee, at the direction of the Servicer, shall transfer such Series 2001-A
Collections and other amounts drawn from the Series 2001-A Expense Subaccount
pursuant to paragraph (c) above to the applicable Series Account with respect to
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such amortizing Series of Notes; provided, further, that if more than one other
Series of Notes is entitled to receive funds pursuant to this Section 4.01(f),
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then the Servicer shall transfer such remaining Series 2001-A Collections pro
rata to the applicable Series Account of each such other Series of Notes in
accordance with Section 8.04(c)(iii) of the Indenture.
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Section 4.02 Determination of Monthly Interest.
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(a) The amount of interest ("Monthly Interest")distributable
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from the Series 2001-A Expense Subaccount with respect to the Series 2001-A
Notes on any Payment Date shall be equal to the product of (i) a fraction, the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is 360, multiplied by (ii) the Note Interest Rate
in effect with respect to the related Interest Period and multiplied by (iii)
the Series Outstanding Amount as of the close of business on the last day of the
related Interest Period.
(b) On the Determination Date preceding each Payment Date,
the Servicer shall determine the excess (the "Interest Shortfall"), if any, of
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(x) the Monthly Interest for such Payment Date over (y) the aggregate amount of
funds allocated and available to pay such Monthly Interest on such Payment Date.
If the Interest Shortfall with respect to any Payment Date is greater than zero,
then on each subsequent Payment Date until such Interest Shortfall is fully
paid, an additional amount ("Additional Interest") equal to the product of (i)
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(A) a fraction, the numerator of which is the actual number of days in the
Interest Period ending on such Payment Date and the denominator of which is 360,
multiplied by (B) the sum of (x) the Note Interest Rate and (y) 2.0% per annum
and (ii) such Interest Shortfall shall be payable as provided herein with
respect to the Series 2001-A Notes. Notwithstanding anything herein to the
contrary, Additional Interest shall be payable or distributed only to the extent
permitted by applicable law.
Section 4.03 Determination of Principal Distribution. The amount of
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principal distributable from the Series 2001-A Principal Subaccount on each
Payment Date (the "Amortization Monthly Principal"), beginning with the Payment
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Date in the month following the month in which the Amortization Period begins,
shall equal the lesser of (i) the amount on
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deposit in the Series 2001-A Principal Subaccount that was deposited therein
during the preceding Monthly Period (including amounts deposited in the Series
2001-A Principal Subaccount pursuant to Section 4.01(d) for distribution on
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such Payment Date) and (ii) the Series Outstanding Amount.
Section 4.04 Application of Collections on Deposit in the Series
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2001-A Expense Subaccount and Principal Subaccount. On each Payment Date or
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Deposit Date, as applicable, the Servicer shall instruct the Indenture Trustee
in writing to apply amounts on deposit in the Series 2001-A Expense Subaccount
and/or the Series 2001-A Principal Subaccount as follows:
(a) On each Payment Date, the Indenture Trustee, at the
direction of the Servicer, shall withdraw the following amounts on deposit in
the Series 2001-A Expense Subaccount of the Collection Account to be distributed
in the following order of priority:
(i) An amount equal to the sum of (A) Monthly Interest for
such Payment Date plus (B) any Interest Shortfall
previously accrued and not reimbursed plus (C) any
Additional Interest previously accrued and not
reimbursed shall be distributed to the Distribution
Account for payment to Series 2001-A Noteholders on
such Payment Date pursuant to Section 5.07; and
------------
(ii) An amount equal to the sum of (A) the Monthly Servicing
Fee for such Payment Date plus (B) any Monthly Servicing
Fee previously accrued and not paid pursuant to this
Section 4.04(a)(ii) shall be distributed to the
------------------
Servicer.
(b) On each Payment Date during the Amortization Period, the
Indenture Trustee, at the direction of the Servicer, shall withdraw from the
Series 2001-A Principal Subaccount an amount equal to the Amortization Monthly
Principal for such Payment Date to be distributed to the Distribution Account
for payment to the Series 2001-A Noteholders on such Payment Date pursuant to
Section 5.07.
------------
Section 4.05 [Reserved].
Section 4.06 Series 2001-A Expense Subaccount.
--------------------------------
(a) The Issuer, for the benefit of the Series 2001-A
Noteholders, shall establish and maintain with the Indenture Trustee or its
nominee in the name of the Indenture Trustee, the Series 2001-A Expense
Subaccount, which shall be a subaccount of the Collection Account (the "Series
------
2001-A Expense Subaccount"). The Indenture Trustee shall possess all right,
---------------------------
title and interest in all monies, instruments, investment property and other
property credited from time to time to the Series 2001-A Expense Subaccount (and
any subaccount thereof) and in all proceeds, earnings, income, revenue,
dividends and distributions thereof for the benefit of the Series 2001-A
Noteholders. The Series 2001-A Expense Subaccount shall be under the sole
dominion and control of the Indenture Trustee for the benefit of the Series
2001-A Noteholders. Pursuant to the authority granted to the Servicer in Article
-------
III of the Receivables Purchase Agreement, the Servicer shall have the power,
---
revocable by the Indenture Trustee if a Servicer Default has occurred, to
instruct the Indenture Trustee to make withdrawals and
-11-
payments from the Series 2001-A Expense Subaccount for the purposes of making
the payments required under Section 4.04.
------------
(b) Funds on deposit in the Series 2001-A Expense Subaccount
shall be invested in accordance with Section 4.02 of the Receivables Purchase
------------
Agreement and held in accordance with Section 6.13 of the Indenture. The
-------------
Indenture Trustee shall bear no responsibility or liability for any losses
resulting from investment or reinvestment of any funds in accordance with such
Sections 4.02 of the Receivables Purchase Agreement nor for the selection of
--------------
Eligible Investments, except as otherwise provided in Section 6.01(f) of the
---------------
Indenture.
Section 4.07 Series 2001-A Principal Subaccount.
----------------------------------
(a) The Issuer, for the benefit of the Noteholders, shall
establish and maintain with the Indenture Trustee or its nominee in the name of
the Indenture Trustee, the Series 2001-A Principal Subaccount, which shall be a
subaccount of the Collection Account (the "Series 2001-A Principal Subaccount").
----------------------------------
The Indenture Trustee shall possess all right, title and interest in all monies,
instruments, investment property and other property credited from time to time
to the Series 2001-A Principal Subaccount (and any subaccount thereof) and in
all proceeds, earnings, income, revenue, dividends and distributions thereof for
the benefit of the Series 2001-A Noteholders. The Series 2001-A Principal
Subaccount shall be under the sole dominion and control of the Indenture Trustee
for the benefit of the Noteholders. Pursuant to the authority granted to the
Servicer in Article III of the Receivables Purchase Agreement, the Servicer
-----------
shall have the power, revocable by the Indenture Trustee if a Servicer Default
has occurred, to instruct the Indenture Trustee to make withdrawals and payments
from the Series 2001-A Principal Subaccount for the purposes of making the
payments required under Section 4.04.
------------
(b) Funds on deposit in the Series 2001-A Principal Subaccount
shall be invested in accordance with Section 4.02 of the Receivables Purchase
------------
Agreement and held in accordance with Section 6.13 of the Indenture. The
-------------
Indenture Trustee shall bear no responsibility or liability for any losses
resulting from investment or reinvestment of any funds in accordance with such
Sections 4.02 of the Receivables Purchase Agreement nor for the selection of
--------------
Eligible Investments, except as otherwise provided in Section 6.01(f) of the
----------------
Indenture.
(c) The Indenture Trustee shall withdraw and transfer funds on
deposit in the Series 2001-A Principal Subaccount on each Business Day during
the Revolving Period to, or at the written direction of, the Servicer if no
Series 2001-A Asset Amount Deficiency has occurred and is continuing and no
event that with the passage of time or the giving of notice could become an
Amortization Event, including a Series 2001-A Asset Amount Deficiency, would
result from such withdrawal. The delivery of a Daily Receivables Activity Report
by the Servicer requesting release of funds to the Issuer shall be deemed a
certification by the Servicer that the foregoing conditions have been satisfied,
and the Indenture Trustee, absent actual knowledge by the Trust Officer
receiving such report that it is inaccurate, shall be entitled to rely on such
certification without further inquiry. Any such transfer to the Issuer shall be
made free and clear of the lien of the Indenture and without compliance with
Section 12.01 of the Indenture.
-------------
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Section 4.08 Determination of LIBOR.
----------------------
On each LIBOR Determination Date, the Paying Agent shall
determine LIBOR on the basis of the rate for deposits in United States dollars
for a one-month period which appears on Telerate Page 3750 as of 11:00 a.m.,
London time, on such date. If such rate does not appear on Telerate Page 3750,
the rate for that LIBOR Determination Date shall be determined on the basis of
the rates quoted by the Reference Banks to the Paying Agent as the rates at
which deposits in United States dollars are offered by the Reference Banks to
the Paying Agent at approximately 11:00 a.m., London time, on that day to prime
banks in the London interbank market for a one-month period. The Paying Agent
shall request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are provided,
the rate for that LIBOR Determination Date shall be the arithmetic mean of the
quotations. If fewer than two quotations are provided as requested, the rate for
that LIBOR Determination Date will be the arithmetic mean of the rates quoted by
major banks in New York City, selected by the Paying Agent, at approximately
11:00 a.m., New York City time, on that day for loans in United States dollars
to leading European banks for such relevant one-month period.
Section 4.09 Investment Instructions. Any investment instructions
------------------------
required to be given to the Indenture Trustee pursuant to the terms hereof must
be given to the Indenture Trustee no later than 1:00 p.m. (New York City time)
on the date such investment is to be made. If the Indenture Trustee receives
such investment instruction later than such time, the Indenture Trustee shall
invest such funds in accordance with the most recent investment instruction
previously received. If the Indenture Trustee is unable to make an investment
required in an investment instruction received by the Indenture Trustee after
1:00 p.m. (New York City time) on such day, such investment shall be made by the
Indenture Trustee on the next succeeding Business Day. In no event shall the
Indenture Trustee be liable for any investment not made pursuant to investment
instructions received after 1:00 p.m. (New York City time) on the day such
investment is requested to be made. Each investment instruction delivered
hereunder shall continue in full force and effect until the earlier of (i) the
delivery of a new, valid, instruction and (ii) the date on which the right of
the Person delivering such instruction to so instruct the Indenture Trustee
shall be revoked hereunder.
ARTICLE V
DELIVERY OF SERIES 2001-A NOTE
DISTRIBUTIONS; REPORTS TO SERIES 2001-A NOTEHOLDERS
Section 5.01 Delivery and Payment for the Series 2001-A Notes;
--------------------------------------------------------
Denominations.
-------------
The Issuer shall execute and the Authentication Agent shall
authenticate the Series 2001-A Notes in accordance with Section 2.03 of the
------------
Indenture. The Indenture Trustee shall deliver the Series 2001-A Notes to or
upon the order of the Issuer when so authenticated.
The Series 2001-A Notes shall be issuable in the minimum
denomination of $250,000 and in integral multiples of $1,000 in excess thereof.
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Section 5.02 Registration; Registration of Transfer and Exchange;
--------------------------------------------------------
Transfer Restrictions.
---------------------
(a) The Series 2001-A Notes have not been registered under the
Securities Act or any state securities law. None of the Issuer, the Registrar or
the Indenture Trustee is obligated to register the Series 2001-A Notes under the
Securities Act or any other securities or "Blue Sky" laws or to take any other
action not otherwise required under the Agreement to permit the transfer of any
Series 2001-A Note without registration.
(b) No transfer of any Series 2001-A Note or any interest
therein (including, without limitation, by pledge or hypothecation) shall be
made except in compliance with the restrictions on transfer set forth in this
Section 5.02 (including the applicable legend to be set forth on the face of
------------
each Series 2001-A Note as provided in Exhibits X-0, X-0 xxx X-0, as applicable)
-------------------------
and in Section 5.04 and Section 5.06 in a transaction exempt from the
------------- -------------
registration requirements of the Securities Act and applicable state securities
or "Blue Sky" laws (i) to a person (A) who the transferor reasonably believes is
a "qualified institutional buyer" within the meaning thereof in Rule 144A (a
"QIB") in the form of a beneficial interest in the Rule 144A Global Notes, and
---
(B) that is aware that the resale or other transfer is being made in reliance on
Rule 144A or (ii) in an offshore transaction in accordance with Rule 903 or Rule
904 of Regulation S, in the form of beneficial interests in the applicable
Regulation S Global Note.
(c) No transfer of a Series 2001-A Note may be made to a Plan
or to any person who is directly or indirectly purchasing a Series 2001-A Note
or interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of, a Plan unless such purchase and holding of such Series 2001-A Note or
interest therein by the Plan will not constitute a prohibited transaction under
Section 406 of ERISA and Section 4975 of the Code, if necessary by reason of the
applicability of one of the Exemptions. Each Plan, or person who is directly or
indirectly purchasing a Series 2001-A Note or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of, a Plan shall be deemed to
have represented and warranted that such purchase and holding will not
constitute a prohibited transaction.
(d) Each Beneficial Owner of a Series 2001-A Note, by its
acceptance thereof, will be deemed to have acknowledged, represented to and
agreed with the Issuer and the Initial Purchaser as follows:
(i) It understands that the Series 2001-A Notes will be
offered and may be resold by the Initial Purchaser
(A) in the United States to QIBs pursuant to Rule
144A in the form of beneficial interests in the Rule
144A Global Notes or (B) outside the United States
pursuant to Regulation S, initially in the form of
beneficial interests in the Temporary Regulation S
Global Notes. As set forth in Section 5.04(a),
---------------
beneficial interests in a Temporary Regulation S
Global Note may be exchanged for beneficial
interests in a Permanent Regulation S Global Note.
(ii) It understands that the Series 2001-A Notes have not
been and will not be registered under the Securities
Act or any state or other applicable securities law
and that the Series 2001-A Notes, or any interest or
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participation therein, may not be offered, sold,
pledged or otherwise transferred unless registered
pursuant to, or exempt from registration under, the
Securities Act and any other applicable securities
law.
(iii) It acknowledges that none of the Issuer or the
Initial Purchaser or any person representing the
Issuer or the Initial Purchaser has made any
representation to it with respect to the Issuer or
the offering or sale of any Series 2001-A Notes,
other than the information contained in the Offering
Memorandum, which has been delivered to it and upon
which it is relying in making its investment
decision with respect to the Series 2001-A Notes.
It has had access to such financial and other
information concerning the Issuer and the Series
2001-A Notes as it has deemed necessary in
connection with its decision to purchase the Series
2001-A Notes.
(iv) It acknowledges that the Series 2001-A Notes will
bear a legend to the following effect unless the
Issuer determines otherwise, consistent with
applicable law:
"THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE HOLDER
HEREOF, BY PURCHASING THIS NOTE, AGREES THAT THIS NOTE OR ANY
INTEREST OR PARTICIPATION HEREIN, MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) TO THE
ISSUER, (2) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO
A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A
QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS
INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER
THE SECURITIES ACT OR (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT. EACH NOTE OWNER BY ACCEPTING A BENEFICIAL
INTEREST IN THIS NOTE, UNLESS SUCH PERSON ACQUIRED THIS NOTE
IN A TRANSFER DESCRIBED IN CLAUSE (3) ABOVE, IS DEEMED TO
----------
REPRESENT THAT IT IS EITHER A QIB PURCHASING FOR ITS OWN
ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF ANOTHER QIB.
PRIOR TO PURCHASING ANY NOTES, PURCHASERS SHOULD CONSULT
COUNSEL WITH RESPECT TO THE AVAILABILITY AND CONDITIONS OF
EXEMPTION FROM THE RESTRICTION ON RESALE OR TRANSFER. THE
ISSUER HAS NOT AGREED TO REGISTER THE NOTES UNDER THE
-15-
SECURITIES ACT, TO QUALIFY THE NOTES UNDER THE SECURITIES LAWS
OF ANY STATE OR TO PROVIDE REGISTRATION RIGHTS TO ANY
PURCHASER.
AS SET FORTH HEREIN, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF."
(v) If it is acquiring any Series 2001-A Note, or any
interest or participation therein, as a fiduciary or
agent for one or more investor accounts, it
represents that it has sole investment discretion
with respect to such account and that it has full
power to make the acknowledgements, representations
and agreements contained herein on behalf of each
such account.
(vi) It (A)(1) is a QIB, (2) is aware that the sale to it
is being made in reliance on Rule 144A and if it is
acquiring such Series 2001-A Notes or any interest
or participation therein for the account of another
QIB, such other QIB is aware that the sale is being
made in reliance on Rule 144A and (3) is acquiring
such Series 2001-A Notes or any interest or
participation therein for its own account or for
the account of a QIB, or (B) is not a U.S. person
and is purchasing such Series 2001-A Notes or any
interest or participation therein in an offshore
transaction meeting the requirements of Rule 903
or 904 of Regulation S.
(vii) It is purchasing the Series 2001-A Notes for its own
account, or for one or more investor accounts for
which it is acting as fiduciary or agent, in each
case for investment, and not with a view to, or for
offer or sale in connection with, any distribution
thereof in violation of the Securities Act, subject
to any requirements of law that the disposition of
its property or the property of such investor
account or accounts be at all times within its or
their control and subject to its or their ability
to resell such Series 2001-A Notes, or any interest
or participation therein, as described in the
Offering Memorandum and as provided in the
Agreement.
(viii) It agrees that if in the future it should offer,
sell or otherwise transfer such Series 2001-A Note
or any interest or participation therein, it will
do so only (A) to the Issuer, (B) pursuant to Rule
144A to a person who it reasonably believes is a
QIB in a transaction meeting the requirements of
Rule 144A, purchasing for its own account or for
the account of a QIB, whom it has informed that
such offer, sale or other transfer is being made in
reliance on Rule 144A or (C) in an offshore
transaction meeting the requirements of Rule 903
or Rule 904 of Regulation S.
(ix) If it is acquiring such Series 2001-A Note or any
interest or participation therein in an "offshore
transaction" (as defined in Regulation S), it
acknowledges that the Series 2001-A Notes initially
will be represented by the Temporary Regulation S
Global Notes and that transfers thereof or any
interest or participation therein are restricted as
described in the Offering Memorandum and as provided
in the Agreement. If it is a QIB, it acknowledges
that the Series 2001-A Notes offered in reliance on
Rule 144A will be represented by the Rule 144A
Global Notes and that transfers thereof or any
-16-
interest or participation therein are restricted as
described in the Offering Memorandum and as provided
in the Agreement.
(x) It understands that the Temporary Regulation S
Global Note will bear a legend to the following
effect unless the Issuer determines otherwise,
consistent with applicable law:
"THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF
REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS TEMPORARY
GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO
BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON
UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED
PURSUANT TO THE TERMS OF THE INDENTURE."
(xi) It acknowledges that the Issuer, the Initial
Purchaser and others will rely on the truth and
accuracy of the foregoing acknowledgments,
representations and agreements, and agrees that if
any of the foregoing acknowledgments,
representations and agreements deemed to have been
made by it are no longer accurate, it shall promptly
notify the Issuer and the Initial Purchaser.
(xii) With respect to any foreign purchaser claiming an
exemption from United States income or withholding
tax, that it has delivered to the Paying Agent a
true and complete Form W-8BEN or W-8ECI indicating
such exemption.
(xiii) It acknowledges that transfers of the Series 2001-A
Notes or any interest or participation therein shall
otherwise be subject in all respects to the
restrictions applicable thereto contained in the
Agreement.
Any transfer, resale, pledge or other transfer of the Series 2001-A Notes
contrary to the restrictions set forth above and in the Indenture shall be
deemed void ab initio by the Transfer Agent and Registrar. As used in this
Section 5.02, the terms "United States" and "U.S. persons" have the meaning
------------
given them in Regulation S.
(e) Notwithstanding anything to the contrary contained herein,
each Series 2001-A Note and the Agreement may, be amended or supplemented to
modify the restrictions on and procedures for resale and other transfers of the
Series 2001-A Notes to reflect any change in applicable law or regulation (or
the interpretation thereof) or in practices relating to the resale or
-17-
transfer of restricted securities generally. Each Noteholder shall by its
acceptance of a Series 2001-A Note have agreed to any such amendment or
supplement.
(f) Holders of a beneficial interest in Series 2001-A Notes
sold in reliance on Regulation S as Temporary Regulation S Global Notes are
prohibited from receiving distributions or from exchanging beneficial interests
in such Temporary Regulation S Global Notes for a beneficial interest in a
Permanent Regulation S Global Note until the later of (i) the expiration of the
Distribution Compliance Period (the "Release Date") and (ii) the furnishing of a
------------
certificate, substantially in the form of Exhibit E-2 attached hereto,
------------
certifying that the beneficial owner of the Temporary Regulation S Global Note
is not a United States Person (a "Regulation S Certificate") as provided in
--------------------------
Section 5.04.
------------
Section 5.03 Global Notes. The Series 2001-A Notes, upon original
------------
issuance, will be issued (i) in fully registered global form without interest
coupons to QIBs in transactions exempt from the registration requirements of the
Securities Act in reliance on Rule 144A, as a single note in fully registered
form, without interest coupons (the "Rule 144A Global Note"), authenticated and
---------------------
delivered in the form of Exhibit A-1, and/or (ii) as a single note in "offshore
-----------
transactions" (within the meaning of Regulation S), in fully registered form,
without interest coupons (the "Temporary Regulation S Global Note"),
---------------------------------------
authenticated and delivered in the form of Exhibit A-2. All such Notes shall be
-----------
delivered to The Depository Trust Company, the initial Clearing Agency by or on
behalf of the Issuer and initially shall be registered on the Note Register in
the name of Cede & Co., the nominee of the initial Clearing Agency, and no
Beneficial Owner will receive a Definitive Note representing such Beneficial
Owner's interest in such Note, except as provided in Section 2.13 of the
-------------
Indenture.
Section 5.04 Regulation S Global Notes.
-------------------------
(a) Series 2001-A Notes issued in reliance on Regulation S initially
will be in the form of a Temporary Regulation S Global Note. Any interest in a
Series 2001-A Note evidenced by a Temporary Regulation S Global Note is
exchangeable for an interest in a Series 2001-A Note in fully registered, global
form, without interest coupons, authenticated and delivered in substantially the
form attached hereto as Exhibit A-3 (the "Permanent Regulation S Global Note")
----------- -----------------------------------
upon the later of (i) the Release Date and (ii) the furnishing of a Regulation S
Certificate.
(b) (i) On or prior to the Release Date, each Beneficial Owner of a
Temporary Regulation S Global Note shall deliver to Euroclear or Clearstream
Banking (as applicable) a Regulation S Certificate; provided, however, that any
Beneficial Owner of a Temporary Regulation S Global Note on the Release Date or
on any payment date that has previously delivered a Regulation S Certificate
hereunder shall not be required to deliver any subsequent Regulation S
Certificate (unless the certificate previously delivered is no longer true as of
such subsequent date, in which case such Beneficial Owner shall promptly notify
Euroclear or Clearstream Banking, as applicable, thereof and shall deliver an
updated Regulation S Certificate). Euroclear and/or Clearstream Banking, as
applicable, shall deliver to the Paying Agent a certificate substantially in the
form of Exhibit E-1 (a "Non-U.S. Certificate") attached hereto promptly upon the
----------- --------------------
receipt of each such Regulation S Certificate, and no such Beneficial Owner (or
transferee from such Beneficial Owner) shall be entitled to receive an interest
in a
-18-
Permanent Regulation S Global Note or any payment of principal of or interest on
or any other payment with respect to its beneficial interest in a Temporary
Regulation S Global Note prior to the Paying Agent receiving such Non-U.S.
Certificate from Euroclear or Clearstream Banking with respect to the portion of
the Temporary Regulation S Global Note owned by such Beneficial Owner (and, with
respect to an interest in the Permanent Regulation S Global Note, prior to the
Release Date).
(c) Any payments of principal of, interest on or any other payment on a
Temporary Regulation S Global Note received by Euroclear or Clearstream Banking
with respect to any portion of such Regulation S Global Note owned by a
Beneficial Owner that has not delivered the Regulation S Certificate required by
this Section 5.04 shall be held by Euroclear and Clearstream Banking solely as
------------
agents for the Paying Agent. Euroclear and Clearstream Banking shall remit such
payments to the applicable Beneficial Owner (or to a Euroclear or Clearstream
Banking member on behalf of such Beneficial Owner) only after Euroclear or
Clearstream Banking has received the requisite Regulation S Certificate. Until
the Paying Agent has received a Non-U.S. Certificate from Euroclear or
Clearstream Banking, as applicable, stating that it has received the requisite
Regulation S Certificate with respect to the beneficial ownership of any portion
of a Temporary Regulation S Global Note, the Paying Agent may revoke the right
of Euroclear or Clearstream Banking, as applicable, to hold any payments made
with respect to such portion of such Temporary Regulation S Global Note. If the
Paying Agent exercises its right of revocation pursuant to the immediately
preceding sentence, Euroclear or Clearstream Banking, as applicable, shall
return such payments to the Paying Agent and the Paying Agent shall hold such
payments in the Distribution Account until Euroclear or Clearstream Banking, as
applicable, has provided the necessary Non-U.S. Certificates to the Paying Agent
(at which time the Paying Agent shall forward such payments to Euroclear or
Clearstream Banking, as applicable, to be remitted to the Beneficial Owner that
is entitled thereto on the records of Euroclear or Clearstream Banking (or on
the records of their respective members)).
(d) Each Beneficial Owner with respect to a Temporary Regulation S
Global Note shall exchange its interest therein for an interest in a Permanent
Regulation S Global Note on or after the Release Date upon furnishing to
Euroclear or Clearstream Banking (as applicable) the Regulation S Certificate
and upon receipt by the Paying Agent of the Non-U.S. Certificate thereof from
Euroclear or Clearstream Banking, as applicable, in each case pursuant to the
terms of this Section 5.04. On and after the Release Date, upon receipt by the
------------
Paying Agent of any Non-U.S. Certificate from Euroclear or Clearstream Banking
described in the immediately preceding sentence (i) with respect to the first
such certification, the Issuer shall execute and, upon receipt of an order to
authenticate, the Authentication Agent shall authenticate and deliver to the
Custodian the applicable Permanent Regulation S Global Note and (ii) with
respect to the first and all subsequent certifications, the Custodian shall
exchange on behalf of the applicable Beneficial Owners the portion of the
applicable Temporary Regulation S Global Note covered by such certification for
a comparable portion of the applicable Permanent Regulation S Global Note. Upon
any exchange of a portion of a Temporary Regulation S Global Note for a
comparable portion of a Permanent Regulation S Global Note, the Custodian shall
endorse on the schedules affixed to each of such Regulation S Global Notes (or
on continuations of such schedules affixed to each of such Regulation S Global
Notes and made parts thereof) appropriate notations evidencing the date of
transfer and (x) with respect to the Temporary Regulation S
-19-
Global Note, a decrease in the principal amount thereof equal to the amount
covered by the applicable certification and (y) with respect to the Permanent
Regulation S Global Note, an increase in the principal amount thereof equal to
the principal amount of the decrease in the Temporary Regulation S Global Note
pursuant to clause (x) above.
---------
Section 5.05 Special Transfer Provisions.
---------------------------
(a) If a holder of a beneficial interest in the Rule 144A Global Note
wishes at any time to exchange its interest in the Rule 144A Global Note for an
interest in the Regulation S Global Note, or to transfer its interest in the
Rule 144A Global Note to a person who wishes to take delivery thereof in the
form of an interest in the Regulation S Global Note, such holder may, subject to
the rules and procedures of the Clearing Agency and to the requirements set
forth in the following sentence, exchange or cause the exchange or transfer or
cause the transfer of such interest for an equivalent beneficial interest in the
Regulation S Global Note. Upon receipt by Transfer Agent and Registrar of (1)
instructions given in accordance with the Clearing Agency's procedures from or
on behalf of a Beneficial Owner of the Rule 144A Global Note, directing the
Transfer Agent and Registrar (via DWAC) to credit or cause to be credited a
beneficial interest in the Regulation S Global Note in an amount equal to the
beneficial interest in the Rule 144A Global Note to be exchanged or transferred,
(2) a written order in accordance with the Clearing Agency's procedures
containing information regarding the Euroclear or Clearstream Banking account to
be credited with such increase and the name of such account and (3) a
certificate given by such holder stating that the exchange or transfer of such
interest has been made pursuant to and in accordance with Rule 903 or Rule 904
of Regulation S under the Securities Act, the Transfer Agent and Registrar shall
promptly deliver appropriate instructions to the Clearing Agency (via DWAC), its
nominee or the Custodian, as the case may be, to reduce or reflect on its
records a reduction of the Rule 144A Global Note by the aggregate principal
amount of the beneficial interest in the Rule 144A Global Note to be so
exchanged or transferred from the relevant participant, and the Transfer Agent
and Registrar shall promptly deliver appropriate instructions (via DWAC) to the
Clearing Agency, its nominee, or the Custodian, as the case may be, concurrently
with such reduction, to increase or reflect on its records an increase of the
principal amount of such Regulation S Global Note by the aggregate principal
amount of the beneficial interest in the Rule 144A Global Note to be so
exchanged or transferred, and to credit or cause to be credited to the account
of the person specified in such instructions (who may be Euroclear Bank S.A.,
N.V., as operator of Euroclear or Clearstream Banking or another agent member of
Euroclear or Clearstream Banking, or both, as the case may be, acting for and on
behalf of them) a beneficial interest in such Regulation S Global Note equal to
the reduction in the principal amount of the Rule 144A Global Note.
Notwithstanding anything to the contrary, the Transfer Agent and Registrar may
conclusively rely upon the completed schedule set forth in the certificate
evidencing the Notes.
(b) If a holder of a beneficial interest in the Regulation S Global Note
wishes at any time to exchange its interest in the Regulation S Global Note for
an interest in the Rule 144A Global Note, or to transfer its interest in the
Regulation S Global Note to a person who wishes to take delivery thereof in the
form of an interest in the Rule 144A Global Note, such holder may, subject to
the rules and procedures of Euroclear or Clearstream Banking and the Clearing
Agency, as the case may be, and to the requirements set forth in the following
sentence, exchange or cause the exchange or transfer or cause the transfer of
such interest for an equivalent
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beneficial interest in the Rule 144A Global Note. Upon receipt by the Transfer
Agent and Registrar of (1) instructions given in accordance with the procedures
of Euroclear or Clearstream Banking and the Clearing Agency, as the case may be,
from or on behalf of a Beneficial Owner of the Regulation S Global Note
directing the Transfer Agent and Registrar to credit or cause to be credited a
beneficial interest in the Rule 144A Global Note in an amount equal to the
beneficial interest in the Regulation S Global Note to be exchanged or
transferred, (2) a written order given in accordance with the procedures of
Euroclear or Clearstream Banking and the Clearing Agency, as the case may be,
containing information regarding the account with the Clearing Agency to be
credited with such increase and the name of such account and (3) prior to the
expiration of the Distribution Compliance Period, a certificate given by such
Beneficial Owner stating that the person transferring such interest in such
Regulation S Global Note reasonably believes that the person acquiring such
interest in the Rule 144A Global Note is a QIB and is obtaining such beneficial
interest for its own account or the account of a QIB in a transaction meeting
the requirements of Rule 144A and any applicable securities laws of any state of
the United States or any other jurisdiction, the Transfer Agent and Registrar
shall promptly deliver (via DWAC) appropriate instructions to the Clearing
Agency, its nominee or the Custodian, as the case may be, to reduce or reflect
on its records a reduction of the Regulation S Global Note by the aggregate
principal amount of the beneficial interest in such Regulation S Global Note to
be exchanged or transferred, and the Transfer Agent and Registrar shall promptly
deliver (via DWAC) appropriate instructions to the Clearing Agency, its nominee,
or the Custodian, as the case may be, concurrently with such reduction, to
increase or reflect on its records an increase of the principal amount of the
Rule 144A Global Note by the aggregate principal amount of the beneficial
interest in the Regulation S Global Note to be so exchanged or transferred, and
to credit or cause to be credited to the account of the person specified in such
instructions a beneficial interest in the Rule 144A Global Note equal to the
reduction in the principal amount of the Regulation S Global Note. After the
expiration of the Distribution Compliance Period, the certification requirement
set forth in clause (3) of the second sentence of this Section 5.05 shall no
--------- -------------
longer apply to such exchanges and transfers. Notwithstanding anything to the
contrary, the Transfer Agent and Registrar may conclusively rely upon the
completed schedule set forth in the certificate evidencing the Notes.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(d) Until the later of the Release Date and the provision of the
certifications required by Section 5.04, beneficial interests in a Regulation S
------------
Global Note may only be held through Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of Euroclear or Clearstream Banking or another
agent member of Euroclear and Clearstream Banking acting for and on behalf of
them. During the Distribution Compliance Period, interests in the Regulation S
Global Note may be exchanged for interests in the Rule 144A Global Note only in
accordance with the certification requirements described in Section 5.05(b)
----------------
above.
Section 5.06 CUSIP Numbers. The Issuer in issuing the Series 2001-A
-------------
Notes may use "CUSIP" numbers and, if so, the Paying Agent may use "CUSIP"
numbers in notices of
-21-
redemption as a convenience to Series 2001-A Noteholders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Series 2001-A Notes or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Series 2001-A Notes, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Issuer shall promptly notify the Paying Agent of any change in the "CUSIP"
numbers.
Section 5.07 Distributions.
-------------
(a) On each Payment Date, the Paying Agent, in accordance with the
Monthly Receivables Activity Report provided by the Servicer, shall distribute
to each Series 2001-A Noteholder of record on the related Record Date such
Series 2001-A Noteholder's pro rata share (determined in accordance with the
relative outstanding principal amount on such Series 2001-A Noteholders' Series
2001-A Notes) of amounts on deposit in the Distribution Account as are payable
to the Series 2001-A Noteholders pursuant to Section 4.04.
------------
(b) Distributions to Series 2001-A Noteholders hereunder shall be made
by (i) check mailed to each Series 2001-A Noteholder (at such Series 2001-A
Noteholder's address as it appears in the Note Register), except that with
respect to any Series 2001-A Notes registered in the name of the nominee of a
Clearing Agency, such distribution shall be made in immediately available funds
and (ii) except with respect to payments made on the Final Stated Maturity Date,
without presentation or surrender of any Series 2001-A Note or the making of any
notation thereon.
Section 5.08 Reports and Statements to Series 2001-A Noteholders.
---------------------------------------------------
(a) On each Payment Date, the Paying Agent shall forward to each Series
2001-A Noteholder a statement substantially in the form of Exhibit C prepared by
---------
the Servicer and delivered to the Paying Agent. The Paying Agent shall have no
liability for the Servicer's failure to provide such statement to it. The Paying
Agent may make such statement (and, at its option, any additional files
containing the same information in an alternative format) available to the
applicable Noteholders via xxx.xx.xxxxxxxxxx.xxx. Parties that are unable to use
xxx.xx.xxxxxxxxxx.xxx are entitled to have a paper copy mailed to them via first
class mail by calling the Trustee at (000) 000-0000 and indicating such. The
Paying Agent shall have the right to change the way such statements are
distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Paying Agent shall provide timely and
adequate notification to all above parties regarding any such changes.
(b) On or before January 31 of each calendar year, beginning with
calendar year 2002, the Paying Agent shall furnish or cause to be furnished to
each Person who at any time during the preceding calendar year was a Series
2001-A Noteholder, a statement prepared by the Servicer containing the
information required to be contained in the statement to Series 2001-A
Noteholders, as set forth in paragraph (a) above, aggregated for such calendar
year or the applicable portion thereof during which such Person was a Series
2001-A Noteholder, together with such other information provided by the Issuer,
as is required to be provided by an issuer of indebtedness under the Code. Such
obligation of the Paying Agent shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the Paying
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Agent pursuant to any requirements of the Code as from time to time in effect.
The Paying Agent shall have no liability for the Servicer's or Issuer's failure
to provide such statement or information to it. The Paying Agent may make such
statement (and, at its option, any additional files containing the same
information in an alternative format) available to the applicable Noteholders
via xxx.xx.xxxxxxxxxx.xxx. Parties that are unable to use xxx.xx.xxxxxxxxxx.xxx
are entitled to have a paper copy mailed to them via first class mail by calling
the Trustee at (000) 000-0000 and indicating such. The Paying Agent shall have
the right to change the way such statements are distributed in order to make
such distribution more convenient and/or more accessible to the above parties
and the Paying Agent shall provide timely and adequate notification to all above
parties regarding any such changes.
ARTICLE VI
AMORTIZATION EVENTS
Section 6.01 Series 2001-A Amortization Events. If any of the
------------------------------------
following events shall have occurred and be continuing:
(a) failure on the part of the Servicer to direct payments to be made in
respect of interest on the Series 2001-A Notes on any Payment Date, or failure
on the part of the Issuer to pay accrued interest on the Series 2001-A Notes in
full on any Payment Date, which failure remains unremedied for three Business
Days;
(b) failure on the part of the Servicer to direct any other payments to
be made by the Issuer to or for the benefit of the Series 2001-A Noteholders, or
failure on the part of the Issuer to pay such amounts, which failure remains
unremedied for five Business Days;
(c) failure on the part of the Issuer to maintain its separate legal
existence or duly to perform or observe any covenant set forth in Sections
--------
3.03(d), (e), (f), (g) or (j) or 3.02(b) or (h) of the Indenture, which failure
---------------------- --- ------- ---
continues unremedied for a period of ten Business Days;
(d) failure on the part of the Issuer duly to perform or observe any
other covenants or agreements of the Issuer set forth in the Indenture or this
Indenture Supplement and not otherwise described above, which failure has a
Material Adverse Effect with respect to the Issuer or a material adverse effect
on the interests of the Series 2001-A Noteholders and which continues unremedied
for a period of 30 days, in each case, after the date on which written notice of
such failure, requiring the same to be remedied, has been given to the Issuer by
the Indenture Trustee, or to the Issuer and the Indenture Trustee by the Holders
of not less than a majority of the Series Outstanding Amount;
(e) any representation or warranty made by the Issuer in the Receivables
Purchase Agreement, this Indenture Supplement or the Indenture proves to have
been incorrect in any material respect when made or when delivered, and
continues to be incorrect in any material respect for a period of 30 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Issuer by the Indenture Trustee, or to
the Issuer and the Indenture Trustee by the Holders of not less than a majority
of the Series
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Outstanding Amount, and as a result of which the interests of the Series 2001-A
Noteholders are materially and adversely affected;
(f) an Event of Bankruptcy with respect to the Originator, the Seller,
the Transferor or the Servicer;
(g) a Servicer Default;
(h) a Purchase Termination Event under the Receivables Purchase
Agreement;
(i) a Series 2001-A Asset Amount Deficiency which occurs and continues
for any five consecutive Business Days;
(j) any of the Indenture, this Indenture Supplement, the Receivables
Sale Agreements, the Consent and Release Agreement or the Master Amendment and
Consent cease, for any reason, to be valid and in full force and effect, other
than in accordance with its terms;
(k) failure to vest and maintain in the Issuer an ownership interest in
the Purchased Assets, free and clear of all Liens (other than Permitted Liens);
(l) failure to vest and maintain in the Indenture Trustee a perfected
first priority security interest in the Pledged Assets;
(m) either (i) the Internal Revenue Service files notice of a Lien
pursuant to Section 6323 of the Code with respect to any of the Purchased Assets
or (ii) the PBGC files, or indicates its intention to file a notice of a Lien
pursuant to Section 4068 of ERISA with respect to any of the Purchased Assets
and, in either such case, such Lien has not been released within 30 days; or
(n) any Event of Default not described above;
then, in any such event, the Holders of not less than a majority of the Series
Outstanding Amount by notice then given in writing to the Issuer, the Servicer,
the Rating Agencies and the Indenture Trustee may declare that an Amortization
Event (an "Amortization Event") has occurred as of the date of such notice so as
------------------
to cause the Amortization Period to commence; provided, that, (x) in the case of
--------
any event described in clauses (f), (m) or (n), an Amortization Event shall be
-----------------------
deemed to have occurred immediately upon the occurrence of such event and the
Amortization Period shall thereupon commence without any notice or other action
on the part of the Indenture Trustee or the Series 2001-A Noteholders and (y) in
the case of any event described in clause (i) which has continued unremedied for
a total of ten consecutive Business Days, an Amortization Event shall be deemed
to have occurred and the Amortization Period shall thereupon commence without
any notice or other action on the part of the Indenture Trustee or the Series
2001-A Noteholders; unless the Series 2001-A Asset Amount Deficiency no longer
exists and the occurrence of such event has been waived by Series 2001-A
Noteholders holding Notes evidencing at least 66 2/3% of the Series Outstanding
Amount.
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ARTICLE VII
OPTIONAL REDEMPTION OF SERIES 2001-A NOTES
Section 7.01 Optional Redemption of Series 2001-A Notes.
------------------------------------------
(a) On any Business Day during the Amortization Period and occurring on
or after the date on which the Series Outstanding Amount is reduced to an amount
equal to or less than 10% of the Initial Series Outstanding Amount, the Issuer
shall have the option to redeem the Series 2001-A Notes, at a redemption price
equal to (i) if such day is a Payment Date, the Redemption Price for such
Payment Date or (ii) if such day is not a Payment Date, the Redemption Price for
the immediately succeeding Payment Date.
(b) If, on any Business Day, the average aggregate outstanding principal
balance of the Series 2001-A Notes for the preceding 90-day period has exceeded
the average Net Eligible Receivables Balance for such period by more than
$25,000,000, the Issuer shall have the option to redeem the Series 2001-A Notes
in part up to the amount of such excess at a redemption price equal to (i) if
such day is a Payment Date, the Redemption Price for such Payment Date or (ii)
if such day is not a Payment Date, the Redemption Price for the immediately
succeeding Payment Date; provided, that each such redemption of Notes must be in
--------
a principal amount of $25,000,000 or an integral multiple thereof.
(c) The Issuer shall give the Servicer and the Indenture Trustee at
least 30 days prior written notice of the date on which the Issuer intends to
exercise any optional redemption pursuant to this Section 7.01. Not later than
------------
1:00 p.m., New York City time, on such day the Issuer shall deposit into (i) the
Series 2001-A Principal Subaccount in immediately available funds the excess of
the principal portion of the Redemption Price over the amount, if any, on
deposit in the Series 2001-A Principal Subaccount and (ii) the Series 2001-A
Expense Subaccount in immediately available funds the excess of the interest
portion of the Redemption Price over the amount, if any, of the Monthly Interest
on deposit in the Series 2001-A Expense Subaccount. Such redemption option is
subject to payment in full of the Redemption Price. Following such deposits into
the Series 2001-A Principal Subaccount and the Series 2001-A Expense Subaccount,
the Redemption Price shall be distributed in accordance with Section 4.04. Upon
------------
payment and distribution of the Redemption Price and the reduction in the Series
Outstanding Amount to zero, the Series 2001-A Noteholders shall have no further
interest in the Pledged Assets.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Ratification of Agreement. As supplemented by this
---------------------------
Indenture Supplement, the Indenture is in all respects ratified and confirmed
and the Indenture as so supplemented by this Indenture Supplement shall be read,
taken and construed as one and the same instrument.
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Section 8.02 Counterparts. This Indenture Supplement may be executed
------------
in two or more counterparts, and by different parties on separate counterparts,
each of which shall be an original, but all of which shall constitute one and
the same instrument.
Section 8.03 Governing Law. THIS INDENTURE SUPPLEMENT SHALL BE
--------------
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING ss.5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT OTHERWISE
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
Section 8.04 No Petition; Limited Recourse.
-----------------------------
(a) Each party hereto hereby covenants and agrees that it will not at
any time institute against the Issuer, the Transferor, the Seller or the
Originator, or join in any institution against the Issuer, the Transferor, the
Seller or the Originator, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any of the Transaction
Documents until the expiration of one year and one day after payment in full of
the latest maturing Note issued by the Issuer under the Indenture and this
Indenture Supplement.
(b) Notwithstanding anything herein to the contrary, each party hereto
hereby agrees that the Notes and other payment obligations of the Issuer
hereunder are limited recourse obligations of the Issuer and shall be payable
solely out of the Series 2001-A Noteholders' allocable share of the Pledged
Assets at such time as and to the extent of any such funds actually received by,
or available to, the Issuer in accordance with Article IV hereof and, to the
----------
extent funds are not available to pay such Notes and other obligations, the
claims relating thereto shall accrue but shall be non-recourse against the
Issuer and shall not constitute claims under Section 101 of the Bankruptcy Code.
(c) This Section 8.04 shall survive termination of the Indenture and
------------
this Indenture Supplement.
-26-
IN WITNESS WHEREOF, the undersigned have caused this Indenture
Supplement to be duly executed and delivered by their respective duly authorized
officers on the day and year first above written.
LEVI XXXXXXX RECEIVABLES FUNDING,
LLC, as Issuer
By: ___________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
CITIBANK, N.A., not in its individual capacity
but solely as Indenture Trustee, Paying Agent,
Authentication Agent and Transfer Agent and
Registrar
By: ___________________________________
Name:
Title:
RULE 144A GLOBAL NOTE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT THIS
NOTE OR ANY INTEREST OR PARTICIPATION HEREIN, MAY BE REOFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) TO THE ISSUER, (2) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QIB") PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE
SECURITIES ACT OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT. EACH NOTE OWNER BY ACCEPTING
A BENEFICIAL INTEREST IN THIS NOTE, UNLESS SUCH PERSON ACQUIRED THIS NOTE IN A
TRANSFER DESCRIBED IN CLAUSE (3) ABOVE, IS DEEMED TO REPRESENT THAT IT IS EITHER
A QIB PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF
ANOTHER QIB.
PRIOR TO PURCHASING ANY NOTES, PURCHASERS SHOULD CONSULT COUNSEL WITH
RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTION FROM THE RESTRICTION ON
RESALE OR TRANSFER. THE ISSUER HAS NOT AGREED TO REGISTER THE NOTES UNDER THE
SECURITIES ACT, TO QUALIFY THE NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR
TO PROVIDE REGISTRATION RIGHTS TO ANY PURCHASER.
AS SET FORTH HEREIN, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED up to $110,000,000(1)
No. ________
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. 00000XXX0
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF, AND EACH HOLDER OF A
BENEFICIAL INTEREST IN THIS NOTE, COVENANTS AND AGREES THAT IT WILL NOT AT ANY
TIME INSTITUTE AGAINST THE ISSUER, THE TRANSFEROR, THE SELLER OR THE ORIGINATOR
OR JOIN IN ANY INSTITUTION AGAINST THE ISSUER, THE TRANSFEROR, THE SELLER OR THE
ORIGINATOR, OF, ANY BANKRUPTCY PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR
STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY OBLIGATIONS RELATING TO
THE NOTES OR THE INDENTURE.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF
A BENEFICIAL INTEREST IN THIS NOTE, BY THE ACQUISITION OF A BENEFICIAL INTEREST
THEREIN, AGREE TO TREAT THE NOTES AS INDEBTEDNESS OF LEVI XXXXXXX RECEIVABLES
FUNDING, LLC FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX
LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON OR MEASURED BY INCOME.
------------------------------------
(1) Denominations of $250,000 and in integral multiples of $1,000 in excess
thereof.
LEVI XXXXXXX RECEIVABLES FUNDING
SECURED TERM NOTES, SERIES 2001-A
Levi Xxxxxxx Receivables Funding, LLC, a Delaware limited liability
company (herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, subject to the following
provisions, a principal sum of ONE HUNDRED TEN MILLION AND ZERO HUNDREDTHS
DOLLARS ($110,000,000.00) payable in an amount equal to the aggregate amount, if
any, payable from the Collection Account in respect of principal on the Notes
pursuant to Section 4.04 of the Supplement. The entire unpaid principal amount
of this Note shall be due and payable at the earlier of the Final Stated
Maturity Date and the Date of an optional redemption under Section 7.01 of the
Supplement. The principal amount of this Rule 144A Global Note and the
Regulation S Global Notes shall not exceed $110,000,000. The Issuer will pay
interest on the Notes with respect to each Interest Period in accordance with
Sections 4.02 and 4.04 of the Supplement. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Authentication Agent whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
LEVI XXXXXXX RECEIVABLES FUNDING, LLC,
as Issuer
By: Name: ________________________________
Title: ______________________________
Date: July 31, 2001
AUTHENTICATION AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
CITIBANK, N.A., not in its individual
capacity but solely as Authentication
Agent
By:
-------------------------------------------
Name:
Title:
Date: July 31, 2001
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Levi Xxxxxxx Receivables
Funding Secured Notes, Series 2001-A (the "Notes") issued and to be issued under
the Master Indenture dated as of July 31, 2001 (as supplemented by the Series
2001-A Supplement dated as of July 31, 2001 (as such Series 2001-A Supplement
may be amended, restated, supplemented or otherwise modified from time to time,
the "Supplement") and as it may be amended, restated, supplemented or otherwise
modified from time to time in accordance with its terms, the "Indenture") among
the Issuer and Citibank, N.A., a national banking association, as Indenture
Trustee (the "Indenture Trustee", which term includes any successor trustee as
permitted under the Indenture), as Paying Agent, Authentication Agent and
Registrar. Reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Issuer, the Indenture Trustee and the Holders of the Notes and the terms
upon which the Notes are, and are to be, authenticated and delivered.
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Indenture or the Supplement as the case may be.
The Notes are and will be equally and ratably entitled to the benefits
of the Indenture without preference, priority or distinction, all in accordance
with the terms and provisions of the Indenture.
Payments of interest on and principal of this Note due and payable on
any Payment Date to the extent not in full payment of this Note, shall be made
by check mailed to the Person whose name appears as the registered Holder of
this Note (or one or more predecessor Notes) on whose Note Register as of the
close of business on each Record Date (the "Registered Holder"), except that
with respect to Notes registered on the Record Date in the name of the nominee
of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will
be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears on the Note Register as of
the applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more predecessor Notes) effected by any payments made on any Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer thereof or in exchange hereof or in lieu
hereof, whether or not noted hereon.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer, in form satisfactory to the
Transfer Agent and Registrar, duly executed by, the Holder hereof or his
attorney-in-fact duly authorized in writing, and such other documents as the
Transfer Agent and Registrar may reasonably require, and thereupon one or more
new Notes of the same Series of authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the Issuer or the Transfer Agent and Registrar may
require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any such registration of transfer or exchange.
On any redemption, purchase, exchange or cancellation of any of the
Notes represented by this Rule 144A Global Note, details of such redemption,
purchase, exchange or cancellation shall be entered by the Paying Agent in
Schedule A hereto recording any such redemption, purchase, exchange or
cancellation. Upon any such redemption, purchase, exchange or cancellation, the
principal amount of this Rule 144A Global Note and the Notes represented by this
Rule 144A Global Note shall be reduced or increased, as appropriate, by the
principal amount so redeemed, purchased, exchanged or cancelled.
Each Noteholder or Beneficial Owner, by acceptance of a Note or, in the
case of a Beneficial Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Indenture Trustee in its individual capacity, (ii) any owner of
a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee in its individual
capacity, any holder of a beneficial interest in the Indenture Trustee or of any
successor or assign of the Indenture Trustee in its individual capacity, except
as any such Person may have expressly agreed and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee, the Paying Agent, the Authentication Agent,
the Transfer Agent and Registrar and any agent of the foregoing shall treat the
Person in whose name this Note (as of the day of determination or as of such
other date as may be specified in the Indenture) is registered as the owner
hereof for all purposes, whether or not this Note be overdue, and neither the
Issuer, the Indenture Trustee, the Paying Agent, the Authentication Agent, the
Transfer Agent and Registrar nor any such agent of the foregoing shall be
affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Indenture Trustee with the consent of the Majority
Investors. Any such amendment or modification by the Holder of this Note (or any
one of more predecessor Notes) shall be conclusive and binding upon the Holders
of this Note and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such amendment
or modification is made upon this Note. The Indenture also permits, subject to
the conditions set forth in the Indenture, the Indenture Trustee to amend or
waive certain terms an conditions set forth in the Indenture without the consent
of Holders of the Notes issued thereunder or without the consent of holders of
Series of Notes not affected thereby.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THE NOTES SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATION LAW OF THE STATE OF
NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of an interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Transaction Documents, neither any owner of a beneficial
interest in the Issuer, nor any of its partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform, any of
the covenants, obligations or indemnifications contained in this Note or the
Indenture. The Holder of this Note by the acceptance hereof agrees that, except
as expressly provided in the Transaction Documents, the Holder shall have no
claim against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
----------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
-----------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
2
Dated:
------------------------ -----------------------------------------
Signature Guaranteed:
--------------------------
2 NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
SCHEDULE A
SCHEDULE OF EXCHANGES BETWEEN THE REGULATION S GLOBAL NOTE
AND THIS RULE 144A GLOBAL NOTE,
OR REDEMPTIONS OR PURCHASES AND CANCELLATIONS
The initial principal amount of this Rule 144A Global Note is
$110,000,000. The following increases or decreases in principal amount of this
Rule 144A Global Note, or redemptions, purchases or cancellations of this Rule
144A Global Note have been made:
Date of exchange, or Increase or decrease in Remaining principal amount Notation made by or
redemption or purchase or principal amount of this of this Rule 144A Global on behalf of the
cancellation Rule 144A Global Note due Note following such exchange, Issuer
to exchanges between the or redemption or purchase
Regulation S Global Note or cancellation
and this Rule 144A Global
Note
-------------------------- -------------------------- ------------------------------ --------------------
-------------------------- -------------------------- ------------------------------ --------------------
-------------------------- -------------------------- ------------------------------ --------------------
TEMPORARY REGULATION S GLOBAL NOTE
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION
S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE
OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO
BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT THIS
NOTE OR ANY INTEREST OR PARTICIPATION HEREIN, MAY BE REOFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) TO THE ISSUER, (2) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QIB") PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE
SECURITIES ACT OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT. EACH NOTE OWNER BY ACCEPTING
A BENEFICIAL INTEREST IN THIS NOTE, UNLESS SUCH PERSON ACQUIRED THIS NOTE IN A
TRANSFER DESCRIBED IN CLAUSE (3) ABOVE, IS DEEMED TO REPRESENT THAT IT IS EITHER
A QIB PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF
ANOTHER QIB.
PRIOR TO PURCHASING ANY NOTES, PURCHASERS SHOULD CONSULT COUNSEL WITH
RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTION FROM THE RESTRICTION ON
RESALE OR TRANSFER. THE ISSUER HAS NOT AGREED TO REGISTER THE NOTES UNDER THE
SECURITIES ACT, TO QUALIFY THE NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR
TO PROVIDE REGISTRATION RIGHTS TO ANY PURCHASER.
AS SET FORTH HEREIN, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED up to $110,000,000(1)
No.________
SEE REVERSE FOR CERTAIN DEFINITIONS
Common Code: 013304670
ISIN: USU52810AA36
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF, AND EACH HOLDER OF A
BENEFICIAL INTEREST IN THIS NOTE, COVENANTS AND AGREES THAT IT WILL NOT AT ANY
TIME INSTITUTE AGAINST THE ISSUER, THE TRANSFEROR, THE SELLER OR THE ORIGINATOR
OR JOIN IN ANY INSTITUTION AGAINST THE ISSUER, THE TRANSFEROR, THE SELLER OR THE
ORIGINATOR, OF, ANY BANKRUPTCY PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR
STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY OBLIGATIONS RELATING TO
THE NOTES OR THE INDENTURE.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF
A BENEFICIAL INTEREST IN THIS NOTE, BY THE ACQUISITION OF A BENEFICIAL INTEREST
THEREIN, AGREE TO TREAT THE NOTES AS INDEBTEDNESS OF LEVI XXXXXXX RECEIVABLES
FUNDING, LLC FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX
LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON OR MEASURED BY INCOME.
--------
1 Denominations of $250,000 and in integral multiples of $1,000 in excess
thereof.
LEVI XXXXXXX RECEIVABLES FUNDING
SECURED TERM NOTES, SERIES 2001-A
Levi Xxxxxxx Receivables Funding, LLC, a Delaware limited liability
company (herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, subject to the following
provisions, a principal sum of ONE HUNDRED TEN MILLION AND ZERO HUNDREDTHS
DOLLARS ($110,000,000.00) payable in an amount equal to the aggregate amount, if
any, payable from the Collection Account in respect of principal on the Notes
pursuant to Section 4.04 of the Supplement. The entire unpaid principal amount
of this Note shall be due and payable at the earlier of the Final Stated
Maturity Date and the Date of an optional redemption under Section 7.01 of the
Supplement. The principal amount of this Temporary Regulation S Global Note and
the Rule 144A Global Note shall not exceed $110,000,000. The Issuer will pay
interest on the Notes with respect to each Interest Period in accordance with
Sections 4.02 and 4.04 of the Supplement. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Authentication Agent whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
LEVI XXXXXXX RECEIVABLES FUNDING, LLC,
as Issuer
By: Name: __________________________________
Title: ________________________________
Date: July 31, 2001
AUTHENTICATION AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
CITIBANK, N.A., not in its individual
capacity but solely as Authentication
Agent
By:
-------------------------------------------
Name:
Title:
Date: July 31, 2001
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Levi Xxxxxxx Receivables
Funding Secured Notes, Series 2001-A (the "Notes") issued and to be issued under
the Master Indenture dated as of July 31, 2001 (as supplemented by the Series
2001-A Supplement dated as of July 31, 2001 (as such Series 2001-A Supplement
may be amended, restated, supplemented or otherwise modified from time to time,
the "Supplement") and as it may be amended, restated, supplemented or otherwise
modified from time to time in accordance with its terms, the "Indenture") among
the Issuer and Citibank, N.A., a national banking association, as Indenture
Trustee (the "Indenture Trustee", which term includes any successor trustee as
permitted under the Indenture), as Paying Agent, Authentication Agent and
Registrar. Reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Issuer, the Indenture Trustee and the Holders of the Notes and the terms
upon which the Notes are, and are to be, authenticated and delivered.
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Indenture or the Supplement as the case may be.
The Notes are and will be equally and ratably entitled to the benefits
of the Indenture without preference, priority or distinction, all in accordance
with the terms and provisions of the Indenture.
Payments of interest on and principal of this Note due and payable on
any Payment Date to the extent not in full payment of this Note, shall be made
by check mailed to the Person whose name appears as the registered Holder of
this Note (or one or more predecessor Notes) on whose Note Register as of the
close of business on each Record Date (the "Registered Holder"), except that
with respect to Notes registered on the Record Date in the name of the nominee
of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will
be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears on the Note Register as of
the applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more predecessor Notes) effected by any payments made on any Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer thereof or in exchange hereof or in lieu
hereof, whether or not noted hereon.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer, in form satisfactory to the
Transfer Agent and Registrar, duly executed by, the Holder hereof or his
attorney-in-fact duly authorized in writing, and such other documents as the
Transfer Agent and Registrar may reasonably require, and thereupon one or more
new Notes of the same Series of authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the Issuer or the Transfer Agent and Registrar may
require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any such registration of transfer or exchange.
On any redemption, purchase, exchange or cancellation of any of the
Notes represented by this Temporary Regulation S Global Note, details of such
redemption, purchase, exchange or cancellation shall be entered by the Paying
Agent in Schedule A hereto recording any such redemption, purchase, exchange or
cancellation. Upon any such redemption, purchase, exchange or cancellation, the
principal amount of this Temporary Regulation S Global Note and the Notes
represented by this Temporary Regulation S Global Note shall be reduced or
increased, as appropriate, by the principal amount so redeemed, purchased,
exchanged or cancelled.
On or after the Release Date, this Temporary Regulation S Global Note
may be exchanged, in whole or in part (free of charge), for the Permanent
Regulation S Global Note in the form set out in Exhibit A-3 of the Supplement
upon certification of non-U.S. beneficial ownership substantially in the form
set out in Exhibit E-2 of the Supplement. The Permanent Regulation S Global Note
shall be so issued and delivered in exchange for only that portion of this
Temporary Regulation S Global Note in respect of which there shall have been
presented to the Paying Agent by Euroclear or Clearstream Banking, as
applicable, a certificate substantially in the form set out in Exhibit E-1 to
the Supplement. The Permanent Regulation S Global Note shall be delivered only
outside the United States.
Each Noteholder or Beneficial Owner, by acceptance of a Note or, in the
case of a Beneficial Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Indenture Trustee in its individual capacity, (ii) any owner of
a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee in its individual
capacity, any holder of a beneficial interest in the Indenture Trustee or of any
successor or assign of the Indenture Trustee in its individual capacity, except
as any such Person may have expressly agreed and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee, the Paying Agent, the Authentication Agent,
the Transfer Agent and Registrar and any agent of the foregoing shall treat the
Person in whose name this Note (as of the day of determination or as of such
other date as may be specified in the Indenture) is registered as the owner
hereof for all purposes, whether or not this Note be overdue, and neither the
Issuer, the Indenture Trustee, the Paying Agent, the Authentication Agent, the
Transfer Agent and Registrar nor any such agent of the foregoing shall be
affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Indenture Trustee with the consent of the Majority
Investors. Any such amendment or modification by the Holder of this Note (or any
one of more predecessor Notes) shall be conclusive and binding upon the
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
amendment or modification is made upon this Note. The Indenture also permits,
subject to the conditions set forth in the Indenture, the Indenture Trustee to
amend or waive certain terms an conditions set forth in the Indenture without
the consent of Holders of the Notes issued thereunder or without the consent of
holders of Series of Notes not affected thereby.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THE NOTES SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATION LAW OF THE STATE OF
NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of an interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Transaction Documents, neither any owner of a beneficial
interest in the Issuer, nor any of its partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform, any of
the covenants, obligations or indemnifications contained in this Note or the
Indenture. The Holder of this Note by the acceptance hereof agrees that, except
as expressly provided in the Transaction Documents, the Holder shall have no
claim against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
----------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
-----------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
2
Dated:
----------------------------- ---------------------------------------
Signature Guaranteed:
--------------------------
2 NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
SCHEDULE A
SCHEDULE OF EXCHANGES BETWEEN THIS TEMPORARY REGULATION S GLOBAL NOTE
AND THE RULE 144A GLOBAL NOTE,
OR REDEMPTIONS OR PURCHASES AND CANCELLATIONS
The initial principal amount of this Temporary Regulation S Global Note
is $0.00 The following increases or decreases in principal amount of this
Temporary Regulation S Global Note, or redemptions, purchases or cancellations
of this Temporary Regulation S Global Note have been made:
Date of exchange, or Increase or decrease in Remaining principal amount of Notation made by or
redemption or purchase or principal amount of this this Temporary Regulation S on behalf of the
cancellation Temporary Regulation S Global Note following such Issuer
Global Note due to exchange, or redemption or
exchanges between this purchase or cancellation
Temporary Regulation S
Global Note
and the Rule 144A Global
Note
------------------------- ------------------------- ---------------------------- ------------------------
------------------------- ------------------------- ---------------------------- ------------------------
------------------------- ------------------------- ---------------------------- ------------------------
