EXHIBIT 4.2
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FISCAL AGENCY AGREEMENT
Between
LEVI XXXXXXX & CO.
Issuer
and
CITIBANK, N.A.
Fiscal Agent
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Dated as of November 22, 1996
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(Y)20,000,000,000 4.25 per cent. Bonds due November 22, 2016
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TABLE OF CONTENTS
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Page
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Parties........................................................................................................1
1. Securities............................................................................................3
2. Fiscal Agent; Other Agents............................................................................4
3. Authorization and Authentication......................................................................4
4. Payment and Cancellation..............................................................................6
(a) Payment..................................................................................6
(b) Certification............................................................................7
(c) Withholding..............................................................................8
(d) Cancellation.............................................................................8
5. Exchange of Securities................................................................................8
6. Redemption............................................................................................9
7. Delivery of Certain Information.......................................................................9
8. Conditions of Fiscal Agent's Obligations.............................................................10
(a) Compensation and Indemnity..............................................................11
(b) Agency..................................................................................11
(c) Advice of Counsel.......................................................................11
(d) Reliance................................................................................11
(e) Interest in Securities, etc.............................................................11
(f) Non-Liability for Interest..............................................................12
(g) Certifications..........................................................................12
(h) No Implied Obligations..................................................................12
9. Resignation and Appointment of Successor.............................................................12
(a) Fiscal Agent and Paying Agent...........................................................12
(b) Resignation.............................................................................12
(c) Successors..............................................................................13
(d) Acknowledgement.........................................................................13
(e) Merger, Consolidation, etc..............................................................14
10. Payment of Taxes.....................................................................................14
11. Meetings and Amendments..............................................................................14
(a) Calling of Meeting, Notice and Quorum...................................................14
(b) Approval................................................................................15
(c) Binding Nature of Amendments, Notices, Notations, etc...................................16
(d) "Outstanding" Defined...................................................................16
12. Governing Law........................................................................................17
13. Notices..............................................................................................17
14. Consent to Service; Jurisdiction.....................................................................17
15. Headings.............................................................................................18
16. Currency Rate Indemnity..............................................................................18
17. Terms and Conditions.................................................................................18
18. Counterparts.........................................................................................18
EXHIBIT A Form of Temporary Global Security
EXHIBIT B Form of Permanent Global Security
EXHIBIT C Form of Definitive Security
EXHIBIT D Terms and Conditions
EXHIBIT E Form of Certificate to be Given by Euroclear or Cedel
EXHIBIT F Form of Certificate to be Given by Beneficial Owners
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FISCAL AGENCY AGREEMENT, dated as of November 22, 1996, between LEVI
XXXXXXX & CO., a corporation duly organized under the laws of Delaware (the
"Issuer"), and CITIBANK, N.A. (London Branch), as Fiscal Agent.
1. Securities.
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The Issuer has, by a Purchase Agreement, dated November 21, 1996,
between the Issuer and Xxxxxxx Sachs International (the "Purchase Agreement"),
agreed to issue (Yen)20,000,000,000 aggregate principal amount of its 4.25 per
cent. Bonds due November 22, 2016 (the "Securities").
The Securities offered shall be initially represented by a single
temporary global security (the "Temporary Global Security") issued in fully
registered form without interest coupons, substantially in the form set forth in
Exhibit A hereto. The Temporary Global Security shall be executed by the Issuer
and delivered to the Fiscal Agent, and the Fiscal Agent shall, upon order of the
Issuer, authenticate such Temporary Global Security. Such Temporary Global
Security shall be registered in the name of National City Nominees Limited or
its nominee and deposited with Citibank, N.A. (London Branch), as common
depositary (the "Common Depositary") on behalf of Xxxxxx Guaranty Trust Company
of New York (Brussels office) as operator of the Euroclear System ("Euroclear")
and Cedel Bank, societe anonyme ("Cedel") for credit to the respective accounts
of Euroclear or Cedel. The beneficial interests in the Temporary Global Note
will be exchangeable for beneficial interests in a permanent global Security
(the "Permanent Global Security"), in denominations of (Yen)l,000,000,000 and
integral multiples thereof, substantially in the form set forth in Exhibit B
hereto, on or after the Exchange Date upon and to the extent that the
certification requirements set forth below have been complied with. As used
herein, the term "Exchange Date" means the date that is 40 days after the later
of (i) the day that Xxxxxxx Sachs International, as initial purchaser of the
Securities, advises the Issuer and the Fiscal Agent is the day on which the
Securities are first offered to persons other than distributors (as defined in
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act")) in reliance on Regulation S and (ii) the closing of the offering of the
Securities under the Purchase Agreement, as notified to the Fiscal Agent and the
Issuer in writing by Xxxxxxx Xxxxx International. The Permanent Global Security
shall be executed by the Issuer and delivered to the Fiscal Agent, and the
Fiscal Agent shall, upon order of the Issuer, authenticate such Permanent Global
Security. The Permanent Global Security shall be registered in the name of
National City Nominees Limited and shall be deposited with the Common Depositary
for the benefit of the operator of Euroclear and Cedel to be held for the
account of the Issuer until the Temporary Global Security shall be exchanged for
the Permanent Global Security in the manner set forth below. The Permanent
Global Security will be exchangeable, in whole but not in part, but only as
provided in Section 3(g) below, for definitive Securities in minimum
denominations of (Yen)1,000,000,000 (the "Definitive Securities") issuable in
registered form, without coupons, in such name or names as Euroclear or Cedel
shall direct, all substantially in the form set forth in Exhibit C hereto. The
term "Securities" as used herein includes the Temporary Global Security, the
Permanent Global Security and the Definitive Securities.
2. Fiscal Agent; Other Agents.
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The Issuer hereby appoints Citibank, N.A. (London Branch) having a
corporate trust office ("Principal Office") at 000 Xxxxxx, Xxxxxx XX0X XXX, in
England, as fiscal agent and principal paying agent of the Issuer in respect of
the Securities upon the terms and subject to the conditions herein set forth,
and Citibank, N.A. (London Branch) hereby accepts such appointment. Citibank,
N.A. (London Branch), and any successor or successors as such fiscal agent
qualified and appointed in accordance with Section 9 hereof, are herein called
the "Fiscal Agent". The Fiscal Agent shall have the powers and authority
granted to and conferred upon it in the Securities and hereby and such further
powers and authority to act on behalf of the Issuer as may be mutually agreed
upon by the Issuer and the Fiscal Agent. All of the terms and provisions with
respect to such powers and authority contained in the Securities are subject to
and governed by the terms and provisions hereof.
The Issuer may, at its discretion, appoint one or more other or
additional agents (each of the principal paying agent, each paying agent
appointed herein and each such other or additional paying agent, (a "Paying
Agent" or "Paying Agents") for the payment (subject to applicable laws and
regulations) of the principal of (and premium, if any) and any interest on the
Securities, and in addition to the appointment contemplated by Section 3(i), one
or more agents (each transfer agent appointed herein and each such other or
additional transfer agent, a "Transfer Agent" or "Transfer Agents") for the
exchange of Securities, at such place or places as the Issuer may determine.
The Issuer shall promptly notify the Fiscal Agent of the name and address of
each Paying Agent and Transfer Agent appointed by it and of the country or
countries in which a Paying Agent or Transfer Agent may act in that capacity,
and will notify the Fiscal Agent of the resignation or termination of any Paying
Agent or Transfer Agent. Subject to the provisions of Section 9(c) hereof, the
Issuer may vary or terminate the appointment of any such Paying Agent or
Transfer Agent at any time and from time to time upon giving not less than
ninety days' notice to such Paying Agent or Transfer Agent, as the case may be,
and to the Fiscal Agent.
The Issuer shall cause notice of any resignation, termination or
appointment of any Paying Agent or Transfer Agent or of the Fiscal Agent and of
any change in the office through which any such Agent will act to be given to
the holders at their addresses as they appear in the Security Register.
3. Authorization and Authentication.
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(a) The Securities shall be executed on behalf of the Issuer by any
two of the following persons: its Chairman of the Board, its Chief Executive
Officer, its President or any of its Vice Presidents, its Treasurer or an
Assistant Treasurer (the "Authorized Officers"), under a facsimile of its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. Any such signature may be manual or facsimile.
Securities bearing the manual or facsimile signature of individuals who were at
any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such officers, or any one of them, shall have ceased, for
any reason, to hold such offices prior to the authentication and delivery of the
Securities or did not hold such offices at the date of the Securities.
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(b) The Issuer shall execute and deliver, on or prior to November 22,
1996 (the "Closing Date") the Temporary Global Security and the Permanent Global
Security to the Fiscal Agent, and the Fiscal Agent shall, upon the order of the
Issuer signed by an executive officer of the Issuer, authenticate the Temporary
Global Security and the Permanent Global Security. The Temporary Global
Security and the Permanent Global Security will be deposited with the Common
Depositary, to be held for credit to the respective accounts of Euroclear or
Cedel (or to such accounts as they may direct), except as otherwise provided in
Section 1 hereof in the case of the Permanent Global Security being held for the
account of the Issuer until the exchange of the Temporary Global Security.
(c) On or after the Exchange Date pursuant to instructions delivered
by the Issuer to the Common Depositary on the date hereof, the Temporary Global
Security may be exchanged as a whole or in part for the Permanent Global
Security without charge, but only upon presentation to the Common Depositary of
a certificate or certificates in substantially the form set forth in Exhibit E
hereto in writing, by tested telex or electronic transmission, from Euroclear or
Cedel and upon presentation to Euroclear or Cedel of a certificate or
certificates in substantially the form set forth in Exhibit F hereto in writing,
by tested telex or electronic transmission, from the beneficial owners of the
Temporary Global Security or portions thereof being exchanged.
(d) [Reserved]
(e) Upon any such exchange of a portion of the Temporary Global
Security for the Permanent Global Security, the Temporary Global Security shall
be endorsed by the Fiscal Agent to reflect the reduction of the principal amount
evidenced thereby, whereupon its remaining principal amount shall be reduced for
all purposes by the amount so exchanged, and the Permanent Global Security shall
be endorsed to reflect the increase of the principal amount evidenced thereby,
whereupon its principal amount shall be increased for all purposes by the amount
so exchanged. Until so exchanged in full, the Temporary Global Security shall
in all respects be entitled to the same benefits under this Agreement as the
Permanent Global Security authenticated and delivered hereunder.
(f) Promptly after the Temporary Global Security has been fully
exchanged, it shall be surrendered by the Common Depositary to the Fiscal Agent,
as the Issuer's agent, for cancellation.
(g) The Permanent Global Security is exchangeable, in whole but not
in part, for a Definitive Security or Securities without charge if the Permanent
Global Security is held on behalf of Euroclear or Cedel or an alternative
clearing system and Euroclear or Cedel or such clearing system is closed for
business for a continuous period of 14 days (other than by reason of holidays,
statutory or otherwise) or announces an intention permanently to cease business
or does in fact do so. Thereupon the holder of a beneficial interest in the
Permanent Global Security may give notice to the Fiscal Agent of its intention
to exchange the Permanent Global Security for Definitive Securities on a day
falling not less than 60 days after the day on which the notice requiring an
exchange is given and on which banks are open for business in the city of
London.
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(h) Upon the exchange of a Permanent Global Security for Definitive
Securities as contemplated by clause (g) of this Section 3, the Permanent Global
Security shall be surrendered promptly by the Common Depositary to the Fiscal
Agent for cancellation. Any exchange of an interest in a Permanent Global
Security for Definitive Securities pursuant to this Section 3 shall be made free
of charge to the beneficial owners of the Permanent Global Security.
(i) The Issuer shall cause to be kept at the Principal Office of the
Fiscal Agent a register (the register maintained in such office and in any other
office or agency for such purpose being herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration and transfer of
Securities. The Fiscal Agent is hereby appointed "Security Registrar" for the
purpose of registering and transferring Securities as herein provided. Any
reference herein to the Transfer Agent or Agents shall include the Security
Registrar.
(j) The Fiscal Agent may, with the consent of the Issuer, appoint by
an instrument or instruments in writing one or more agents (which may include
itself) for the authentication of the Securities and, with such consent, vary or
terminate any such appointment upon written notice and approve any change in the
office through which any authentication agent acts. The Issuer (by written
notice to the Fiscal Agent and the authentication agent whose appointment is to
be terminated) may also terminate any such appointment at any time. The Fiscal
Agent hereby agrees to solicit written acceptances from the entities concerned
(in form and substance satisfactory to the Issuer) of any such appointments. In
its acceptance of such appointment, each such authentication agent shall agree
to act as an authentication agent pursuant to the terms and conditions of this
Agreement.
4. Payment and Cancellation.
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(a) Payment. Subject to the following provisions, the Issuer shall
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provide to the Fiscal Agent at its head office in Tokyo, Japan on or prior to
the applicable due date for payment of the Securities, funds required to make
payment of the principal of and interest on the Securities, at the times, in the
amounts, in such coin or currency and for the purposes set forth herein and in
the text of the Securities; and the Issuer hereby authorizes and directs the
Fiscal Agent from funds so paid to it to make or cause to be made payment of the
principal of (and premium, if any) and interest on the Securities as set forth
herein and in the text of the Securities. The Fiscal Agent will arrange
directly with the Paying Agents (if applicable) for the payment, and the Fiscal
Agent will make payment, in the manner provided herein and in the Securities,
from funds furnished by the Issuer, of the principal of (and premium, if any)
and interest on the Securities. Any such Paying Agent shall provide to the
Fiscal Agent, as promptly as practicable after the Interest Payment Date (as
defined in the text of the Securities) or maturity date or redemption date a
certificate as to the Securities so paid by the Paying Agent. Notwithstanding
the foregoing, the Issuer may provide directly to a Paying Agent funds for the
payment of the principal thereof (and premium, if any) and interest, payable
thereon under an agreement with respect to such funds containing substantially
the same terms and conditions set forth in this Section 4(a) and in Section 8(b)
hereof; and the Fiscal Agent shall have no responsibility with respect to any
funds so provided by the Issuer to any such Paying
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Agent. The Issuer irrevocably confirms that funds will be deposited with an
account specified by the Fiscal Agent in such a manner so that the Fiscal Agent
will be able to make timely payments in accordance with the provisions of this
Agreement. If the Fiscal Agent or any Paying Agent has not for any reason
received on the relevant payment date sufficient amounts to satisfy all claims
in respect of payments then due on the Securities, the Fiscal Agent and any
Paying Agent shall not be required to make payment of any amount due on any
Security until the Fiscal Agent or such Paying Agent has received or has had
made available to it the full amount of the monies then due and payable in
respect of such Securities. Nevertheless, subject to the foregoing, if the
Fiscal Agent or any Paying Agent is satisfied that it will receive such full
amount later, it shall be entitled to pay principal of or interest on the
Securities due in accordance with their terms.
The principal of (and premium, if any) and interest on the Securities
shall be payable in Japanese Yen. Payment of principal shall be made to the
registered owner against surrender of Securities, subject to any applicable laws
and regulations, at the office of any Paying Agent. Payment of any installment
of interest on a Security shall be made to the person in whose name such
Security is registered at the close of business on April 15 and October 15
(whether or not such days are business days) in the year of the relevant
interest payment date (the "Record Date"), in accordance with such information
furnished to the Fiscal Agent by the Registrar promptly after each Record Date.
Payments of principal (and premium, if any) and interest will be made, subject
to any applicable laws and regulations, by transfer to a Japanese Yen account
maintained by the payee with a bank in Tokyo. Each registered owner shall give
notice of such Japanese Yen account, in the case of principal payments, to the
relevant Paying Agent not less than 15 days prior to the date of the payment to
be received, or, in the case of interest payments, to the Registrar not later
than the Record Date relating to the payment to be received, provided that if
such notice has been given to the Registrar and the applicable Paying Agent,
such registered owner shall give further notice to the Registrar and Paying
Agent only upon a change of any details as to such account. If a registered
owner fails to give such notice prior to the time limit specified above,
payments of principal (and premium, if any) and interest will be made, subject
to any applicable laws and regulations, by a Japanese Yen check drawn on a bank
in Tokyo unless the relevant Paying Agent or (as the case may be) the Registrar
at its discretion accepts such notice given after the time limit specified
above. Payments to non-residents of Japan shall be made to a non-resident
Japanese Yen account maintained by the payee with an authorized foreign exchange
bank in Tokyo or (as the case may be) by a Japanese Yen check drawn on an
authorized foreign exchange bank in Tokyo, subject to each case to any
applicable laws and regulations.
(b) Certification. The Issuer shall have the right reasonably to
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require a holder of a Security, as a condition of payment of the principal of
(and premium, if any) or any interest on such Security, to present at such place
as the Issuer shall designate a certificate in such form as the Issuer may from
time to time prescribe to enable the Issuer to determine its duties and
liabilities with respect to (i) any taxes, assessments or governmental charges
which the Issuer, the Fiscal Agent or any withholding agent may be required to
deduct or withhold from payments in respect of such Security under any present
or future law of any jurisdiction or any regulation of any taxing authority
thereof and (ii) any reporting or other requirements under such laws or
regulations. To the extent not otherwise prohibited by applicable laws and
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regulations, the Issuer shall be entitled to determine its duties and
liabilities with respect to such deduction, withholding, reporting or other
requirements on the basis of information contained in such certificate, or, if
no certificate shall be presented, on the basis of any presumption created by
any such law or regulation, and shall be entitled to act in accordance with such
determination.
The Fiscal Agent and each such withholding agent shall retain each
certificate received by it and relating to the Securities for so long as any of
the Securities are outstanding and in no event for less than four calendar years
after its receipt, and for such additional period thereafter as such certificate
may become material in the administration of applicable tax laws.
(c) Withholding. At least 10 days prior to the first date of payment
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of interest on the Securities and at least 10 days prior to each date, if any,
of payment of principal (and premium, if any) or interest thereafter if there
has been any change with respect to the matters set forth in the below-mentioned
certificate, the Issuer will furnish the Fiscal Agent and each other Paying
Agent with a certificate of Authorized Officers instructing the Fiscal Agent and
each other Paying Agent whether such payment of principal of (and premium, if
any) or any interest on such Securities shall be made without deduction or
withholding for or on account of any tax, assessment or other governmental
charge. If any such deduction or withholding shall be required, then such
certificate shall specify, by country, the amount, if any, required to be
withheld on such payment to holders of such Securities, and the Issuer shall
provide to the Fiscal Agent on the applicable payment date the funds required to
make such payment net of any amounts required to be withheld or deducted as set
forth in such certificate. The Issuer agrees to indemnify the Fiscal Agent and
each other Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by them
in reliance on any certificate furnished pursuant hereto.
(d) Cancellation. All Securities delivered to the Fiscal Agent (or
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any other Agent appointed by the Issuer pursuant to Section 2 hereof) by a
holder for payment, redemption or exchange, or by the Issuer for cancellation,
or by the Common Depositary in accordance with Section 3 hereof, shall be
canceled and destroyed by the Fiscal Agent (or, if delivered to another Agent
appointed by the Issuer pursuant to Section 2 hereof, by such other Agent, which
shall thereupon furnish certificates of such destruction to the Fiscal Agent).
Upon such cancellation and destruction (or upon receipt of such certificates
from such other Agent), the Fiscal Agent shall furnish certificates of such
destruction to the Issuer.
5. Exchange of Securities.
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The Fiscal Agent, or its agent duly authorized by the Fiscal Agent, is
hereby authorized from time to time in accordance with the provisions of the
Securities and of this Section to authenticate and deliver:
(i) Securities in exchange for or in lieu of Securities of like tenor
and of like form which become mutilated, destroyed, stolen or lost; and
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(ii) Upon partial redemption, Securities of authorized denominations
of a like tenor and form as the Securities so surrendered in exchange for
the unredeemed portion of any Securities repaid in part only.
Securities shall be dated the date from which interest on the
Securities first begins to accrue. Each Security authenticated and delivered
upon any exchange for or in lieu of the whole or any part of any Security shall
carry all the rights, if any, to interest accrued and unpaid and to accrue which
were carried by the whole or such part of such Security.
6. Redemption.
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All notices of redemption of the Securities shall be made in the name
and at the expense of the Issuer and shall be given in accordance with the
provisions applicable thereto set forth in the text of the Securities.
Whenever less than all the Securities at any time Outstanding are to
be redeemed at the option of the Issuer, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the redemption date by
the Fiscal Agent from the Outstanding Securities not previously called for
redemption, by prorating, as nearly as may be practicable, the principal amount
of Securities to be redeemed. In any proration pursuant to this Section, the
Fiscal Agent shall make such adjustments, reallocations and eliminations as it
shall deem proper to the end that the principal amount of Securities so prorated
shall be (Yen)1,000,000,000 or a multiple thereof, by increasing or decreasing
or eliminating the amount which would be allocable to any holder on the basis of
exact proportion by an amount not exceeding (Yen)1,000,000,000. The Fiscal
Agent in its discretion may determine the particular Securities (if there are
more than one) registered in the name of any holder which are to be redeemed, in
whole or in part. Upon any partial redemption of a Security, the Issuer will
issue and the Fiscal Agent shall authenticate and deliver in exchange therefor
one or more Securities, of any authorized denomination as requested by the
holder, in aggregate principal amount equal to the unredeemed portion of the
principal of such Security.
7. Delivery of Certain Information.
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(a) The Issuer shall maintain a system of accounting established and
administered in accordance with sound business practices to permit preparation
of financial statements in conformity with GAAP (as defined in Condition 7 of
the Terms and Conditions of the Securities). So long as any Securities are
Outstanding (as defined in Section 11(d) hereof) and subject to the second
sentence of subsection (b) below, the Issuer will furnish or cause to be
furnished to the Fiscal Agent and, upon request of a holder of Securities, the
Fiscal Agent shall furnish to such holder, as soon as available, a copy (in
English):
(i) as soon as practicable and in any event within 60 days after the
end of each of the first three fiscal quarters of the fiscal year of the
Issuer, a copy of the consolidated balance sheet of the Issuer and its
Subsidiaries (as defined in Condition 7 of the Terms and Conditions of the
Securities), as at the end of the period, and the related consolidated
statements of income and cash flows of the Issuer and its
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Subsidiaries for such fiscal quarter and for the fiscal year to date,
certified by the chief financial officer, treasurer or controller of the
Issuer as fairly presenting the financial condition of the Issuer and its
Subsidiaries in all material respects as at the dates indicated and the
results of their operations and changes in cash flows for the periods
indicated in accordance with GAAP, except for the absence of footnotes and
subject to changes resulting from audit and normal year-end adjustment;
(ii) as soon as practicable and in any event within 90 days after the
end of each fiscal year of the Issuer, commencing with fiscal year 1996, a
copy of the consolidated balance sheet of the Issuer and its Subsidiaries
as at the end of such year and the related consolidated statement of
income, stockholders' equity and cash flows of the Issuer and its
Subsidiaries for such fiscal year, accompanied by a report thereon of and a
letter from Xxxxxx Xxxxxxxx LLP or other independent public accountants of
recognized international standing; which report shall be unqualified as to
going concern and scope of audit and shall state that such consolidated
financial statements present fairly in all material respects the financial
position of the Issuer and its Subsidiaries as at the dates indicated and
the results of operations and cash flows for the periods indicated in
conformity with GAAP (except as otherwise stated therein) and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepting
auditing standards;
(b) As soon as practicable after the same are available to the
Issuer, the Issuer will deliver to the Fiscal Agent and, upon request of a
holder of Securities, the Fiscal Agent shall furnish to such holder as soon as
available, a copy (in English), of all material financial statements, reports,
notices and proxy statements, if any, sent or made available by the Issuer to
its bondholders generally, of all material regular and periodic reports and
other filings, if any, made by the Issuer with any securities exchange or the
Securities and Exchange Commission, and of all press releases and other
statements made available generally by the Issuer to the public concerning
material developments in the business of the Issuer and its Subsidiaries taken
as a whole. Notwithstanding the foregoing, the Issuer shall have no obligation
under this subsection to deliver to the Fiscal Agent copies of (i) court filings
and related documents, (ii) state securities or "blue sky" filings, (iii)
filings relating to routine business matters such as permits, etc. and (iv)
filings pursuant to the consent decree between the Issuer and the U.S. Federal
Trade Commission dates July 12, 1978. As to any information contained in
materials furnished pursuant to this subsection, the Issuer shall not be
separately required to furnish such information under subsection (a) above, but
the foregoing shall not derogate the obligation of the Issuer to furnish the
information and material described in subsection (a) above at the times
specified therein.
8. Conditions of Fiscal Agent's Obligations.
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The Fiscal Agent accepts it obligations herein set forth upon the
terms and conditions hereof, including the following, to all of which the Issuer
agrees and to all of which the rights of holders from time to time of Securities
are subject:
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(a) Compensation and Indemnity. The Fiscal Agent shall be entitled to
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reasonable compensation as agreed with the Issuer for all services rendered by
it, and the Issuer agrees promptly to pay such compensation and to reimburse the
Fiscal Agent for the reasonable out-of-pocket expenses (including counsel fees)
incurred by it in connection with its services hereunder. The Issuer also
agrees to indemnify the Fiscal Agent for, and to hold it harmless against, any
loss, liability or expense, incurred without negligence or bad faith, arising
out of or in connection with its acting as Fiscal Agent hereunder, as well as
the reasonable costs and expenses of defending against any claim of liability in
the premises. The obligations of the Issuer under this Section 8(a) shall
survive payment of all the Securities or the resignation or removal of the
Fiscal Agent.
(b) Agency. In acting under this Agreement and in connection with the
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Securities, the Fiscal Agent is acting solely as agent of the Issuer and does
not assume any responsibility for the correctness of the recitals in the
Securities (except for the correctness of the statement in its certificate of
authentication thereon) or any obligation or relationship of agency or trust,
for or with any of the owners or holders of the Securities, except that all
funds held by the Fiscal Agent for the payment of principal of (and premium, if
any) and any interest on the Securities shall be held in a segregated account
for such owners or holders, as the case may be, as set forth herein and in the
Securities, and the Fiscal Agent shall have no claim or right of set-off against
funds so held in such segregated account on account of amounts owing to the
Fiscal Agent from the Company; provided, however, that monies held in respect of
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the Securities remaining unclaimed at the end of two years after the principal
of all the Securities shall have become due and payable (whether at maturity or
otherwise) and monies sufficient therefor shall have been duly made available
for payment shall, together with any interest made available for payment
thereon, be repaid to the Issuer, as provided and in the manner set forth in the
Securities. Upon such repayment, the aforesaid obligation to maintain a
segregated account shall terminate and all liability of the Fiscal Agent and
Paying Agents with respect to such funds shall thereupon cease.
(c) Advice of Counsel. The Fiscal Agent and any Paying Agent or
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Transfer Agent appointed by the Issuer pursuant to Section 2 hereof may consult
with their respective counsel or other counsel or professional advisors
satisfactory to them, and the opinion of such counsel or advisors shall be full
and complete authorization and protection in respect of any action taken or
suffered by them hereunder in good faith and without negligence and in
accordance with such opinion.
(d) Reliance. The Fiscal Agent and any Paying Agent or Transfer Agent
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appointed by the Issuer shall be protected and shall incur no liability for or
in respect of any action taken or thing suffered by it in reliance upon any
Security, notice, direction, consent, certificate, affidavit, statement, or
other paper or document believed by it, in good faith and without negligence, to
be genuine and to have been passed or signed by the proper parties.
(e) Interest in Securities, etc. The Fiscal Agent, any Paying Agent
----------------------------
or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof and their
respective officers, directors and employees may become the owners of, or
acquire any interest in, any Securities, with the same rights that they would
have if they were not the Fiscal Agent, such
-11-
other Paying Agent or Transfer Agent or such person, and may engage or be
interested in any financial or other transaction with the Issuer, and may act
on, or as depository, trustee or agent for, any committee or body of holders of
Securities or other obligations of the Issuer, as freely as if they were not the
Fiscal Agent, such other Paying Agent or Transfer Agent or such person.
(f) Non-Liability for Interest. Subject to any agreement between the
--------------------------
Issuer and the Fiscal Agent to the contrary, the Fiscal Agent shall not be under
any liability for interest on monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Securities.
(g) Certifications. Whenever in the administration of this Agreement
--------------
the Fiscal Agent shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Fiscal Agent
(unless other evidence be herein specifically prescribed) may, in the absence of
bad faith or negligence on its part, rely upon a certificate signed by any
person authorized by or pursuant to a resolution of the boards of directors of
the Issuer and delivered to the Fiscal Agent.
(h) No Implied Obligations. The duties and obligations of the Fiscal
----------------------
Agent shall be determined solely by the express provisions of this Agreement,
and the Fiscal Agent shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement, and no
implied covenants or obligations shall be read into this Agreement against the
Fiscal Agent.
9. Resignation and Appointment of Successor.
----------------------------------------
(a) Fiscal Agent and Paying Agent. The Issuer agrees, for the benefit
-----------------------------
of the holders from time to time of the Securities, that there shall at all
times be a Fiscal Agent hereunder which shall be a bank or trust company in good
standing and having an established place of business in London, and authorized
under such laws to exercise corporate trust powers, and, to the extent required
by the provisions of the Securities, if any, a Paying Agent outside the United
States for payment of principal of (and premium, if any) and any interest on
such Securities, until all the Securities authenticated and delivered hereunder
(i) shall have been delivered to the Fiscal Agent for cancellation or (ii)
become due and payable and monies sufficient to pay the principal of (and
premium, if any) and any interest on the Securities shall have been made
available for payment and either paid or returned to the Issuer as provided
herein and in such Securities.
(b) Resignation. The Fiscal Agent may at any time resign by giving
-----------
written notice to the Issuer of such intention on its part, specifying the date
on which its desired resignation shall become effective, provided that such date
shall not be less than two (2) months from the date on which such notice is
given, unless the Issuer agrees to accept shorter notice. The Fiscal Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed on behalf of the Issuer and specifying such removal and the date
when it shall become effective. Notwithstanding the dates of effectiveness of
resignation or removal, as the case may be, to be specified in accordance with
the preceding sentences, such resignation or removal shall take effect only upon
the appointment by the Issuer, as hereinafter provided, of a
-12-
successor Fiscal Agent (which, to qualify as such, shall be a bank or trust
company in good standing and having and acting through an established place of
business in London, authorized under such laws to exercise corporate trust
powers and having a combined capital and surplus in excess of U.S. $50,000,000)
and the acceptance of such appointment by such successor Fiscal Agent. Upon its
resignation or removal, the Fiscal Agent shall be entitled to payment by the
Issuer pursuant to Section 8 hereof of compensation for services rendered and to
reimbursement of out-of-pocket expenses incurred hereunder. If, by the day which
is 10 days before the expiration of any notice under this Section 9(b), the
Issuer has not appointed a successor Fiscal Agent, the Fiscal Agent shall be
entitled, on behalf of the Issuer, to appoint a Fiscal Agent in its place
meeting the requirements set out above (which successor Fiscal Agent must be
approved by the Issuer, provided that such approval shall not be unreasonably
withheld or delayed).
(c) Successors. In case at any time the Fiscal Agent or any Paying
----------
Agent (if such Paying Agent is the only Paying Agent located in a place where,
by the terms of the Securities or this Agreement, the Issuer is required to
maintain a Paying Agent) shall resign, or shall be removed, or shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or shall file a
voluntary petition in bankruptcy or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver of all or any substantial
part of its property, or shall admit in writing its inability to pay or meet its
debts as they severally mature, or if a receiver of it or of all or any
substantial part of its property shall be appointed, or if an order of any court
shall be entered approving any petition filed by or against it under the
provisions of applicable receivership, bankruptcy, insolvency, reorganization or
other similar legislation, or if a receiver of it or its property shall be
appointed, or if any public officer shall take charge or control of it or of its
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Fiscal Agent or Paying Agent, as the case may be,
qualified as aforesaid, shall be appointed by the Issuer by an instrument in
writing, filed with the successor Fiscal Agent or Paying Agent, as the case may
be, and the predecessor Fiscal Agent or Paying Agent, as the case may be. Upon
the appointment as aforesaid of a successor Fiscal Agent or Paying Agent, as the
case may be, and acceptance by such successor of such appointment, the Fiscal
Agent or Paying Agent, as the case may be, so succeeded shall cease to be Fiscal
Agent or Paying Agent, as the case may be, hereunder. If no successor Fiscal
Agent or other Paying Agent, as the case may be, shall have been so appointed by
the Issuer and shall have accepted appointment as hereinafter provided, and, in
the case of such other Paying Agent, if such other Paying Agent is the only
Paying Agent located in a place where, by the terms of the Securities or this
Agreement, the Issuer is required to maintain a Paying Agent, then any holder of
a Security who has been a bona fide holder of a Security for at least six
months, on behalf of himself and all others similarly situated, or the Fiscal
Agent may petition any court of competent jurisdiction for the appointment of a
successor agent. The Issuer shall give prompt written notice to each other
Paying Agent of the appointment of a successor Fiscal Agent and shall give
prompt written notice to the Fiscal Agent of the appointment of a successor
Paying Agent.
(d) Acknowledgement. Any successor Fiscal Agent appointed hereunder
---------------
shall execute, acknowledge and deliver to its predecessor and to the Issuer an
instrument accepting such appointment hereunder, and thereupon such successor
Fiscal Agent, without any
-13-
further act, deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of such predecessor
with like effect as if originally named as Fiscal Agent hereunder, and such
predecessor, upon payment of its compensation and reimbursement of its
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Fiscal Agent shall be entitled to receive, all
monies, securities, books, records or other property on deposit with or held by
such predecessor as Fiscal Agent hereunder.
(e) Merger, Consolidation, etc. Any corporation into which the Fiscal
---------------------------
Agent hereunder may be merged, or any corporation resulting from any merger or
consolidation to which the Fiscal Agent shall be a party, or any corporation to
which the Fiscal Agent shall sell or otherwise transfer all or substantially all
the assets and business of the Fiscal Agent, provided that it shall be qualified
as aforesaid, shall be the successor Fiscal Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
10. Payment of Taxes.
----------------
The Issuer will pay all stamp and other duties, if any, which may be
imposed by the State of Delaware, the United States of America or any political
subdivision thereof or taxing authority of or in the foregoing with respect to
this Agreement or the issuance of the Securities.
11. Meetings and Amendments.
-----------------------
(a) Calling of Meeting, Notice and Quorum. A meeting of holders of
-------------------------------------
Securities may be called at any time and from time to time to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement or the Securities to be made, given or taken
by holders of Securities or to modify, amend or supplement the terms of the
Securities or this Agreement as hereinafter provided. The Fiscal Agent may at
any time call a meeting of holders of Securities for any such purpose to be held
at such time and at such place in London as the Fiscal Agent shall determine.
Notice of every meeting of holders of Securities, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given as provided in the terms of the Securities, not
less than 30 nor more than 60 days prior to the date fixed for the meeting. In
case at any time the Issuer or the holders of at least 25% in aggregate
principal amount of the Outstanding Securities (as defined in subsection (d) of
this Section) shall have requested the Fiscal Agent to call a meeting of the
holders of Securities for any such purpose, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, the Fiscal
Agent shall call such meeting for such purposes by giving notice thereof.
To be entitled to vote at any meeting of holders of Securities, a
person shall be a holder of Outstanding Securities. The persons entitled to
vote a majority in principal amount of the Outstanding Securities shall
constitute a quorum. At the reconvening of any meeting adjourned for a lack of
a quorum, the persons entitled to vote 25% in principal amount the Outstanding
Securities shall constitute a quorum for the taking of an action set forth in
the
-14-
notice of the original meeting. The Fiscal Agent may make such reasonable
and customary regulations as it shall deem advisable for any meeting of holders
of Securities with respect to the proof of the holdings of Securities, the
adjournment and chairmanship of such meeting, the appointment and duties of
inspectors of votes, the submission and examination of certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate.
(b) Approval. (i) At any meeting of holders of Securities duly called
--------
and held as specified above, upon the affirmative vote of the holders of not
less than a majority in aggregate principal amount of the Securities then
Outstanding represented at such meeting (or of such other percentage as may be
set forth in the text of the Securities with respect to the action being taken),
or (ii) with the written consent of the owners of not less than a majority in
aggregate principal amount of the Securities then Outstanding (or of such other
percentage as may be set forth in the text of the Securities with respect to the
action being taken), the Issuer and the Fiscal Agent may, but shall not be
obligated to, modify, amend or supplement the terms of the Securities or this
Agreement, in any way, and the holders of Securities may make, take or give any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement or the Securities to be made, given or taken
by holders of Securities; provided, however, that any resolution referred to in
-------- -------
clause (i) above shall be approved by the holders of not less than 25% in
aggregate principal amount of the Securities then Outstanding, and; provided,
--------
further, that no such action may, without the consent of the holder of each
-------
Security affected thereby, (A) change the due date for the payment of the
principal of (or premium, if any) or any installment of interest on any
Security, (B) reduce the principal amount of any Security (or premium, if any,
thereon), the portion of such principal amount which is payable upon
acceleration of the maturity of such Security or the interest rate thereon, (C)
change the coin or currency in which or the required places at which payment
with respect to interest, premium or principal in respect of Securities is
payable, (D) permit the Issuer to redeem the Securities if, prior to such
action, the Issuer is not permitted so to do, or (E) reduce the proportion of
the principal amount of Securities required to constitute a quorum at any
meeting of holders of Securities for the adoption of any resolution or the vote
or consent of the holders of which is necessary to modify, amend or supplement
this Agreement or the terms and conditions of the Securities or to make, take or
give any request, demand, authorization, direction, notice, consent, waiver or
other action provided hereby or thereby to be made, taken or given. The Issuer
and the Fiscal Agent may, without the vote or consent of any holder of
Securities, amend this Agreement or the Securities for the purpose of curing any
ambiguity, or of curing, correcting or, supplementing any defective provision
thereof, or in any manner which the Issuer and the Fiscal Agent may deem
necessary or desirable and which they determine shall not be inconsistent with
the Securities and shall not materially adversely affect the interest of any
holder of Securities or in any manner permitted as set forth in the text of the
Securities.
It shall not be necessary for the vote or consent of the holders of
Securities to approve the particular form of any proposed modification,
amendment, supplement, request, demand, authorization, direction, notice,
consent, waiver or other action, but it shall be sufficient if such vote or
consent shall approve the substance thereof.
-15-
(c) Binding Nature of Amendments, Notices, Notations, etc. Any
------------------------------------------------------
instrument given by or on behalf of any holder of a Security in connection with
any consent to or vote for any such modification, amendment, supplement,
request, demand, authorization, direction, notice, consent, waiver or other
action will be irrevocable once given and will be conclusive and binding on all
subsequent holders of such Security or any Security issued directly or
indirectly in exchange or substitution therefor or in lieu thereof. Any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action will be conclusive and binding on all
holders of Securities, whether or not they have given such consent or cast such
vote or were present at any meeting, and whether or not notation of such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action is made upon the Securities. Notice of
any modification or amendment of, supplement to, or request, demand,
authorization, direction, notice, consent, waiver or other action with respect
to the Securities or this Agreement (other than for purposes of curing any
ambiguity or of curing, correcting or supplementing any defective provision
hereof or thereof) shall be given to each holder of Securities affected thereby,
in all cases as provided in such Securities.
Securities authenticated and delivered after the effectiveness of any
such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action may bear a notation in the
form approved by the Fiscal Agent and the Issuer as to any matter provided for
in such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action. New Securities modified to
conform, in the opinion of the Fiscal Agent and the Issuer, to any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action may be prepared by the Issuer,
authenticated by the Fiscal Agent (or any authentication agent appointed
pursuant to Section 3 hereof) and delivered in exchange for Outstanding
Securities.
(d) "Outstanding" Defined. For purposes of the provisions of this
---------------------
Agreement and the Securities, any Security authenticated and delivered pursuant
to this Agreement shall, as of any date of determination, be deemed to be
"Outstanding", except:
------
(i) Securities theretofore canceled by the Fiscal Agent or delivered
to the Fiscal Agent for cancellation or held by the Fiscal Agent for
reissuance but not reissued by the Fiscal Agent;
(ii) Securities which have been called for redemption in accordance
with their terms or which have become due and payable at maturity or
otherwise and with respect to which monies sufficient to pay the principal
thereof (and premium, if any) and any interest thereon shall have been made
available to the Fiscal Agent; or
(iii) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to this
Agreement;
provided, however, that in determining whether the holders of the requisite
-------- -------
principal amount of Outstanding Securities are present at a meeting of holders
of Securities for quorum purposes or
-16-
have consented to or voted in favor of any request, demand, authorization,
direction, notice, consent, waiver, amendment, modification or supplement
hereunder, (i) the principal amount of a Security which by its terms provides
for an amount less than the principal amount to be due and payable upon a
declaration of acceleration of the maturity thereof that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the maturity
thereof, and (ii) Securities owned directly or indirectly by the Issuer shall be
disregarded and deemed not to be Outstanding.
12. Governing Law.
-------------
Except as otherwise provided by applicable mandatory provisions of
law, this Agreement shall be governed by, and interpreted in accordance with,
the laws of the State of New York, United States of America.
13. Notices.
-------
All notices or communications hereunder, except as herein otherwise
specifically provided, shall be in writing and if sent to the Fiscal Agent shall
be delivered, transmitted by facsimile, telexed or telegraphed to it at 000
Xxxxxx, Xxxxxx XX0X 0XX, Attention: Bond Agency Department, facsimile
transmission no. 00000-000-0000 or if sent to the Issuer shall be delivered or
transmitted by facsimile to it at Levi Xxxxxxx & Co., Levi's Plaza, 0000 Xxxxxxx
Xxxxxx, XX0/0, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile transmission no. (415)
501-1342, Attention: Treasurer. The foregoing addresses for notices or
communications may be changed by written notice given by the addressee to each
party hereto, and the addressee's address shall be deemed changed for all
purposes from and after the giving of such notice.
If the Fiscal Agent shall receive any notice or demand addressed to
the Issuer by the holder of a Security, the Fiscal Agent shall promptly forward
such notice or demand to the Issuer.
14. Consent to Service; Jurisdiction.
--------------------------------
The Issuer hereby appoints Citibank, N.A., 000 Xxxx Xxxxxx in the
Borough of Manhattan, The City of New York (attention: Corporate Trust
Administration) and its successors as its authorized agent (the "Authorized
Agent") upon which process may be served in any action arising out of or based
on the Securities or this Agreement which may be instituted in any State or
Federal court in the City of New York by the holder of any Security and
expressly accepts the jurisdiction of any such court in respect of such action.
Such appointment, which the Fiscal Agent hereby accepts, shall be irrevocable
until all amounts in respect of the principal of (and premium, if any) and any
interest due and to become due on or in respect of all the Securities have been
either paid or discharged in full, unless and until a successor Fiscal Agent
shall have been appointed as such Authorized Agent and shall have accepted such
appointment. The Issuer shall take any and all action, including the filing of
any and all documents and instruments, that may be necessary to continue such
appointment or appointments in full force and effect as aforesaid. Service of
process upon the Authorized
-17-
Agent at the address indicated above, as such address may be changed within the
Borough of Manhattan, The City of New York by notice given by the Authorized
Agent to the holders of the Securities, shall be deemed, in every respect,
effective service of process upon the Issuer. Notwithstanding the foregoing, any
action arising out of or based on the Securities may be instituted by the holder
of any Security in any other court of competent jurisdiction.
15. Headings.
--------
The section headings herein are for convenience only and shall not
affect the construction hereof.
16. Currency Rate Indemnity.
-----------------------
If a judgment or order is given by a court or tribunal of any
particular jurisdiction for the payment of any amounts owing under any of the
Securities to the holders thereof, such judgment or order is expressed in a
currency other than Yen, and the amount which is received (or could have been
received) by converting such other currency to Yen promptly following receipt at
the prevailing rate of exchange in a foreign exchange market reasonably selected
by such holder of Securities is less than the amount owed by the Issuer in Yen,
then the Issuer shall indemnify and hold each affected holder of Securities
harmless against the deficiency and any direct loss sustained as a result
thereof. The Issuer shall also pay the reasonable cost of the conversion but
shall not be obligated to pay any special or consequential damages.
17. Terms and Conditions.
--------------------
The Terms and Conditions of the Securities attached hereto as Exhibit
D shall be part of the terms of all the Securities and applicable thereto for
all purposes. However, the Issuer may prepare the Securities in a form that
includes Terms and Conditions numbered 1 through 6, inclusive, and 12 through
15, inclusive, only. The omission of such other Terms and Conditions from the
forms of Securities is for convenience only and shall not affect the Terms and
Conditions applicable to the Securities that shall include all of the Terms and
Conditions.
18. Counterparts.
------------
This Agreement may be executed in one or more counterparts, and by
each party separately on a separate counterpart, and each such counterpart when
executed and delivered shall be deemed to be an original. Such counterparts
shall together constitute one and the same instrument.
-18-
IN WITNESS WHEREOF, the parties hereto have executed this Fiscal
Agency Agreement as of the date first above written.
LEVI XXXXXXX & CO.
By ________________________
Title:
By ________________________
Title:
Attest:
_________________________
CITIBANK, N.A. (LONDON BRANCH),
as Fiscal Agent
By ________________________
Title:
Attest:
_________________________
-19-
EXHIBIT A
FORM OF TEMPORARY GLOBAL SECURITY
THIS SECURITY IS A TEMPORARY GLOBAL SECURITY WITHIN THE MEANING
OF THE FISCAL AGENCY AGREEMENT REFERRED TO HEREINAFTER. NO EX-
CHANGE OF AN INTEREST IN THIS TEMPORARY GLOBAL SECURITY MAY
BE MADE FOR AN INTEREST IN THE PERMANENT GLOBAL SECURITY
EXCEPT ON OR AFTER THE EXCHANGE DATE AND UPON DELIVERY
OF CERTIFICATIONS RELATING TO SUCH INTEREST IN THE
FORMS REQUIRED BY THE FISCAL AGENCY AGREEMENT.
THIS OBLIGATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED OR SOLD IN CONTRAVENTION OF THAT ACT.
LEVI XXXXXXX & CO.
(Yen)20,000,000,000
4.25 per cent. Bonds due November 22, 2016
No. TG-1 ISIN: XS0071465586
TEMPORARY GLOBAL SECURITY
LEVI XXXXXXX & CO., a corporation duly organized and existing under
the laws of the State of Delaware (the "Issuer"), for value received, hereby
promises to pay to National City Nominees Limited, or registered assigns, the
principal sum of Twenty Billion Japanese Yen ((Yen)20,000,000,000) on November
22, 2016 (or on such earlier date as such principal may become payable in
accordance with the Terms and Conditions (the "Conditions") of the Securities
designated above (the "Securities") which are attached hereto) and to pay
interest thereon from November 22, 1996 or from the most recent Interest Payment
Date (as defined in the Conditions) to which interest has been paid or duly
provided for, semi-annually in arrears on May 1 and November 1 in each year,
commencing May 1, 1997 (each an "Interest Payment Date"), and on the date of
maturity, at the rate of 4.25 per cent. per annum (calculated on the basis of a
year of twelve 30-day months), until the principal hereof is paid or made
available for payment, and, to the fullest extent permitted by applicable law,
at the rate of 4.25 per cent. per annum on any overdue principal and premium and
on any overdue instalment of interest.
A-1
This Temporary Global Security is one of a duly authorized issue of
Securities of the Issuer designated as specified in the title hereof, issued and
to be issued under the Fiscal Agency Agreement, dated as of November 22, 1996
("Fiscal Agency Agreement"), between the Issuer and Citibank, N.A. (London
Branch), as Fiscal Agent ("Fiscal Agent"). On or after January 4, 1997 (the
"Exchange Date"), this temporary security is exchangeable in whole or from time
to time in part without charge upon request of the Holder hereof for a
beneficial interest in a duly executed and authenticated Permanent Global
Security in registered form, without coupons, of authorized denominations as
promptly as practicable following presentation of certification, in the form
required by the Fiscal Agency Agreement for such purpose, from Euroclear or
Cedel Bank, and upon presentation of certification to Euroclear or Cedel,
substantially in the form of certificate attached as Exhibit F to the Fiscal
Agency Agreement, from the beneficial owners of the Temporary Global Security or
portions thereof being exchanged. Upon any exchange of a part of this Temporary
Global Security for a beneficial interest in the Permanent Global Security, the
portion of the principal amount hereof so exchanged shall be endorsed by or on
behalf of the Fiscal Agent on the Schedule hereto, and the principal amount
hereof shall be reduced for all purposes by the amount so exchanged in order
that the Permanent Global Security represents an aggregate principal amount of
securities equal to the aggregate principal amount of beneficial interests in
this Temporary Global Security submitted for exchange.
Until exchanged in full for the Permanent Global Security, this
Temporary Global Security shall in all respects be entitled to the same benefits
and subject to the same terms and conditions of, and the Issuer shall be subject
to the same restrictions as those to be endorsed on, the Permanent Global
Security and those contained in the Fiscal Agency Agreement.
This Temporary Global Security shall be governed by and construed in
accordance with the laws of the State of New York.
Reference is hereby made to the provisions of the Conditions of this
Temporary Global Security attached hereto, which further provisions shall for
all purposes have the same effect as if set forth at this place.
All terms used in this Temporary Global Security which are defined in
the Fiscal Agency Agreement or the definitive Securities shall have the meanings
assigned to them therein.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Fiscal Agent by the manual signature of one of its duly
authorized officers, this Temporary Global Security shall not be valid or
obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Issuer has caused this Temporary Global
Security to be duly executed and its corporate seal to be hereunto affixed and
attested.
Dated: November 22, 1996
LEVI XXXXXXX & CO.
By _________________________
Title:
By _________________________
Title:
[Corporate Seal]
Attest:
________________________
Title:
This is the Temporary Global Security referred to in the within-
mentioned Fiscal Agency Agreement and is authenticated by or on behalf of the
Fiscal Agent.
CITIBANK, N.A. (LONDON BRANCH),
as Fiscal Agent
By _________________________
Authorized Officer
A-3
SCHEDULE OF
PRINCIPAL AMOUNT OF THE TEMPORARY GLOBAL SECURITY
The following subtractions of parts of the principal amount of this
Temporary Global Security have been made:
Portion of the aggregate
principal amount of this
Temporary Global Security Remaining principal
exchanged for interests in amount of this Notation made on
Date of exchange or the Permanent Global Temporary Global behalf of the Fiscal
cancellation Security Security Agent
-------------------- ------------------------------ ----------------------- ------------------------
(Yen) (Yen)
-------------------- ------------------------------ ----------------------- ------------------------
-------------------- ------------------------------ ----------------------- ------------------------
-------------------- ------------------------------ ----------------------- ------------------------
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-------------------- ------------------------------ ----------------------- ------------------------
-------------------- ------------------------------ ----------------------- ------------------------
-------------------- ------------------------------ ----------------------- ------------------------
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A-4
EXHIBIT B
FORM OF PERMANENT GLOBAL SECURITY
THIS OBLIGATION HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE OFFERED OR SOLD IN CONTRAVENTION OF THAT ACT.
LEVI XXXXXXX & CO.
(Yen)0
4.25 per cent. Bonds due November 22, 2016
No. PG-1 ISIN: XS0071465586
PERMANENT GLOBAL SECURITY
LEVI XXXXXXX & CO., a corporation duly organized under the laws of
Delaware (herein called the "Issuer"), for value received, hereby promises to
pay to National City Nominees Limited, or registered assigns, the principal sum
of Zero Japanese Yen ((Yen)0) (or such other amount as is shown in column four
on the Schedule attached hereto, but in no event to exceed (Yen)20,000,000,000)
on November 22, 2016 (or on such earlier date as such principal amount may
become payable in accordance with the Terms and Conditions (the "Conditions") of
the Securities designated above (the "Securities") which are attached hereto)
and to pay interest thereon from November 22, 1996 or from the most recent
Interest Payment Date (as defined in the Conditions) to which interest has been
paid or duly provided for, semi-annually in arrears on May 1 and November 1 in
each year, commencing May 1, 1997 (each an "Interest Payment Date"), and on the
date of maturity, at the rate of 4.25 per cent. per annum (calculated on the
basis of a year of twelve 30-day months), until the principal hereof is paid or
made available for payment, and, to the fullest extent permitted by applicable
law, at the rate of 4.25 per cent. per annum on any overdue principal and
premium and on any overdue instalment of interest. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will be paid
to the person in whose name this Permanent Global Security is registered at the
close of business on the April 15 or October 15 next preceding such Interest
Payment Date ("Record Date"). Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the person in whose name this
Permanent Global Security is registered on such Record Date and may be paid to
the person in whose name this Permanent Global Security is registered at the
close of business on a special record date for the payment of such defaulted
interest to be fixed by the Issuer or be paid at any time in any other lawful
manner not inconsistent with the requirement of any securities exchange on which
this Permanent Global Security may be listed. Such payments (including premium,
if any) shall be
B-1
made by Japanese Yen check drawn on, or transfer to a Japanese Yen account
maintained by the payee with, a bank in the City of Tokyo. Payment of interest
on this Permanent Global Security will be made by Japanese Yen check drawn on a
bank in The City of Tokyo mailed to the address of the person entitled thereto
as such address shall appear in the Security Register (as defined in Condition 3
of the Conditions hereof) or, upon application by the Holder to the Fiscal Agent
not later than the Record Date in respect of such payment, by transfer to a
Japanese Yen account maintained by the Holder with a bank in the City of Tokyo.
Upon any exchange of a part of the Temporary Global Security for a
beneficial interest in this Permanent Global Security, the portion of the
principal amount hereof so exchanged shall be endorsed by or on behalf of the
Fiscal Agent on the Schedule hereto, and the principal amount hereof shall be
increased for all purposes by the amount so exchanged.
This Permanent Global Security is one of a duly authorized issue of
Securities of the Issuer designated as specified in the title hereof, issued and
to be issued under the Fiscal Agency Agreement, dated as of November 22, 1996
("Fiscal Agency Agreement"), between the Issuer and Citibank, N.A. (London
Branch), as Fiscal Agent ("Fiscal Agent"). This Permanent Global Security is
exchangeable, in whole but not in part, for a Definitive Security or Securities
without charge if (i) there occurs and is continuing any Event of Default under
Condition 6 or (ii) this Permanent Global Security is held on behalf of
Euroclear or Cedel or an alternative clearing system and Euroclear or Cedel or
such clearing system is closed for business for a continuous period of 14 days
(other than by reason of holidays, statutory or otherwise) or announces an
intention permanently to cease business or does in fact do so. Thereupon the
holder of a beneficial interest in this Permanent Global Security may give
notice to the Fiscal Agent of its intention to exchange the Permanent Global
Security for Definitive Securities on a day falling not less than 60 days after
the day on which the notice requiring an exchange is given and on which banks
are open for business in the city of London.
Reference is hereby made to the provisions of the Conditions of this
Permanent Global Security attached hereto, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Fiscal Agent by the manual signature of one of its duly
authorized officers, this Permanent Global Security shall not be valid or
obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed and its corporate seal to be affixed hereto and attested.
Dated: November 22, 1996
LEVI XXXXXXX & CO.
By ________________________
Title:
By ________________________
Title:
[Corporate Seal]
Attest:
_________________________
Title:
This is the Permanent Global Security referred to in the within-
mentioned Fiscal Agency Agreement and is authenticated by or on behalf of the
Fiscal Agent.
CITIBANK, N.A. (LONDON BRANCH),
as Fiscal Agent
By ________________________
Authorized Officer
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SCHEDULE OF
PRINCIPAL AMOUNT OF THE PERMANENT GLOBAL SECURITY
The following increases to and subtractions from the principal amount
of this Permanent Global Security have been made:
Reason for change in Increase to or
principal amount of subtraction from Aggregate principal Notation made on
this Permanent aggregate amount following such behalf of the
Date Global Security/*/ principal amount increase or subtraction Fiscal Agent
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(Yen) (Yen)
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____________________
/*/ State whether increase/subtraction follows (1) exchange of all or a
portion of the Temporary Global Note, (2) redemption of all or a
portion of this Permanent Global Security, (3) payment and cancellation
of Permanent Global Security or (4) exchange of this Permanent Global
Security for Definitive Securities.
B-4
EXHIBIT C
FORM OF DEFINITIVE SECURITY
THIS OBLIGATION HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE OFFERED OR SOLD IN
CONTRAVENTION OF THAT ACT.
LEVI XXXXXXX & CO.
(Yen)________
4.25 per cent. Bonds due November 22, 2016
No. D-______________ ISIN: XS0071465586
LEVI XXXXXXX & CO., a corporation duly organized under the laws of
Delaware (herein called the "Issuer"), for value received, hereby promises to
pay to __________, or registered assigns, the principal sum of _______________
Japanese Yen ((Yen)__________) on November 22, 2016 (or on such earlier date as
such principal amount may become payable in accordance with the Terms and
Conditions (the "Conditions") of the Securities designated above (the
"Securities") which are attached hereto) and to pay interest thereon from
November 22, 1996 or from the most recent Interest Payment Date (as defined in
the Conditions) to which interest has been paid or duly provided for, semi-
annually in arrears on May 1 and November 1 in each year, commencing May 1, 1997
(each an "Interest Payment Date"), and on the date of maturity, at the rate of
4.25 per cent. per annum (calculated on the basis of a year of twelve 30-day
months), until the principal hereof is paid or made available for payment, and,
to the fullest extent permitted by applicable law, at the rate of 4.25 per cent.
per annum on any overdue principal and premium and on any overdue instalment of
interest. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will be paid to the person in whose name this Security
is registered at the close of business on the April 15 or October 15 next
preceding such Interest Payment Date ("Record Date"). Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
person in whose name this Security is registered on such Record Date and may be
paid to the person in whose name this Security is registered at the close of
business on a special record date for the payment of such defaulted interest to
be fixed by the Issuer or be paid at any time in any other lawful manner not
inconsistent with the requirement of any securities exchange on which this
Security may be listed. Such payments (including premium, if any) shall be made
by Japanese Yen check drawn on, or transfer to a Japanese Yen account maintained
by the payee with, a bank in the City of Tokyo. Payment of interest on this
Security will be made by Japanese Yen check drawn on a bank in The City of Tokyo
mailed to the address of the person
C-1
entitled thereto as such address shall appear in the Security Register (as
defined in Condition 3 of the Terms and Conditions hereof) or, upon application
by the Holder to the Fiscal Agent not later than the Record Date in respect of
such payment, by transfer to a Japanese Yen account maintained by the Holder
with a bank in the City of Tokyo. The Issuer covenants that until this Security
has been delivered to the Fiscal Agent for cancellation, or monies sufficient to
pay the principal of and premium, if any, and interest on this Security has been
made available for payment and either paid or returned to the Issuer, it will at
all times maintain an office or agency outside the United States for the payment
of the principal of and premium, if any, and interest on the Securities as
herein provided.
This Security is one of a duly authorized issue of Securities of the
Issuer designated as specified in the title hereof, issued and to be issued
under the Fiscal Agency Agreement, dated as of November 22, 1996 ("Fiscal Agency
Agreement"), between the Issuer and Citibank, N.A. (London Branch), as Fiscal
Agent ("Fiscal Agent"). Reference is hereby made to the provisions of the
Conditions of this Security attached hereto, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Fiscal Agent by the manual signature of one of its duly
authorized officers, this Security shall not be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed and its corporate seal to be affixed hereto and attested.
Dated: November 22, 1996
LEVI XXXXXXX & CO.
By __________________________
Title:
By __________________________
Title:
[Corporate Seal]
Attest:
_________________________
Title:
This is one of the Securities referred to in the within-mentioned
Fiscal Agency Agreement and is authenticated by or on behalf of the Fiscal
Agent.
C-2
CITIBANK, N.A. (LONDON BRANCH),
as Fiscal Agent
By _______________________
Authorized Officer
C-3
EXHIBIT D
TERMS AND CONDITIONS OF THE SECURITIES
1. This Security is one of a duly authorized issue of securities of
the Issuer in the aggregate principal amount of 20,000,000,000 Japanese Yen
((Yen)20,000,000,000), designated as its 4.25 per cent. Bonds due November 22,
2016 (herein called the "Securities"). The Issuer, for the benefit of the
Holders (as defined in Condition 2 herein) from time to time of the Securities,
has entered into a Fiscal Agency Agreement, dated as of November 22, 1996
(herein called the "Fiscal Agency Agreement"), between the Issuer and Citibank,
N.A. (London Branch), as Fiscal Agent (herein called the "Fiscal Agent", which
term includes any successor fiscal agent under the Fiscal Agency Agreement),
copies of which Fiscal Agency Agreement are on file and available for inspection
at the corporate trust office of the Fiscal Agent in London. Upon the written
request of any Holder, the Fiscal Agent will provide a copy of the Fiscal Agency
Agreement to such Holder.
The Securities are unsecured direct, unconditional and general
obligations of the Issuer and will rank pari passu, without any preference or
---- -----
priority of payment, among themselves and with all other evidences of
indebtedness issued in accordance with the Fiscal Agency Agreement and with all
other unsecured and unsubordinated indebtedness of the Issuer.
2. The Securities are issuable as registered Securities. The
Securities are issuable in authorized denominations of ((Yen)1,000,000,000 and
integral multiples thereof. As used herein, the term "Holder", when used with
respect to any Security, means the person in whose name such Security is
registered in the Security Register.
3. The Issuer shall maintain in London an office or agency where
Securities may be surrendered for registration of transfer or exchange. The
Issuer has initially appointed the corporate trust office (the "Principal
Office") of the Fiscal Agent as its agent in London for such purpose and has
agreed to cause to be kept at such office a register (the register maintained in
such office and in any other office or agency for such purpose being herein
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer will provide for the
registration and transfers of Securities. The Issuer reserves the right to vary
or terminate the appointment of the Fiscal Agent as security registrar or any
transfer agent or to appoint additional or other registrars or transfer agents
or to approve any change in the office through which any security registrar or
transfer agent acts, provided that there will at all times be a security
registrar in London.
The transfer of a Security is registrable on the Security Register
upon surrender of such Security at the Principal Office of the Fiscal Agent duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Fiscal Agent duly executed by, the Holder
thereof or his attorney duly authorized in writing. Upon such surrender of this
Security for registration of transfer, the Issuer shall execute, and the Fiscal
Agent shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more
D-1
new Securities, dated the date of authentication thereof, of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder upon request confirmed in writing,
Securities may be exchanged for Securities of any authorized denominations and
of a like aggregate principal amount, upon surrender of the Securities to be
exchanged at the office of any transfer agent or at the Principal Office of the
Fiscal Agent. Any registration of transfer or exchange will be effected upon
the transfer agent or the Fiscal Agent, as the case may be, being satisfied with
the documents of title and identity of the person making the request and subject
to such reasonable regulations as the Issuer may from time to time agree with
the transfer agents and the Fiscal Agent. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
In the event of a redemption in part, the Issuer shall not be required
(i) to register the transfer of or exchange any Security during a period
beginning at the opening of business 15 days before the date notice is given
identifying the Securities to be redeemed or (ii) to register the transfer of or
exchange any registered Security, or portion thereof, called for redemption.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits, as the Securities surrendered upon such
registration of transfer or exchange. No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith, other than an exchange in connection with a partial
redemption of a Security not involving any registration of a transfer.
The Issuer and the Fiscal Agent and any other paying agency of the
Issuer may deem and treat the person in whose name a Security is registered the
owner thereof for all purposes whether or not such Security be overdue, and
neither the Issuer, the Fiscal Agent nor any such agent shall be affected by
notice to the contrary.
4. (a) Subject to the following provisions, the Issuer shall
provide to the Fiscal Agent at its head office in the City of Tokyo, on or prior
to the applicable due date for the payment of Securities, funds required to make
payment of the principal of and interest on the Securities, at the times, in the
amounts, in such coin or currency and for the purposes set forth herein and in
the text of the Securities; and the Issuer hereby authorizes and directs the
Fiscal Agent from funds so paid to it to make or cause to be made payment of the
principal of (and premium, if any) and interest on the Securities as set forth
herein and in the text of the Securities. The Fiscal Agent will arrange
directly with the Paying Agents (if applicable) for the payment, and the Fiscal
Agent will make payment, in the manner provided herein and in the Securities,
from funds furnished by the Issuer, of the principal of (and premium, if any)
and interest on the Securities.
The principal of (and premium, if any) and interest on the Securities
shall be payable in Japanese Yen. Payment of principal shall be made to the
registered owner against
D-2
surrender of Securities, subject to any applicable laws and regulations, at the
office of any Paying Agent. Payment of any installment of interest on a Security
shall be made to the person in whose name such Security is registered at the
close of business on April 15 and October 15 (whether or not such days are
business days) in the year of the relevant interest payment date (the "Record
Date"), in accordance with such information furnished to the Fiscal Agent by the
Registrar promptly after each Record Date. Payments of principal (and premium,
if any) and interest will be made, subject to any applicable laws and
regulations, by transfer to a Japanese Yen account maintained by the payee with
a bank in Tokyo. Each registered owner shall give notice of such Japanese Yen
account, in the case of principal payments, to the relevant Paying Agent not
less than 15 days prior to the date of the payment to be received, or, in the
case of interest payments, to the Registrar not later than the Record Date
relating to the payment to be received. If a registered owner fails to give such
notice prior to the time limit specified above, payments of principal (and
premium, if any) and interest will be made, subject to any applicable laws and
regulations, by a Japanese Yen check drawn on a bank in Tokyo unless the
relevant Paying Agent or (as the case may be) the Registrar at its discretion
accepts such notice given after the time limit specified above. Payments to non-
residents of Japan shall be made to a non-resident Japanese Yen account
maintained by the payee with an authorized foreign exchange bank in Tokyo or (as
the case may be) by a Japanese Yen check drawn on an authorized foreign exchange
bank in Tokyo, subject to each case to any applicable laws and regulations. Any
monies paid by the Issuer to the Fiscal Agent for the payment of the principal
of or premium, if any, or interest on any Securities and remaining unclaimed at
the end of two years after such principal, premium or interest shall have become
due and payable (whether at maturity, upon call for redemption or otherwise) and
monies sufficient therefor shall have been duly made available for payment shall
then be repaid to the Issuer upon its written request, and upon such repayment
all liability of the Fiscal Agent and the Paying Agents with respect thereto
shall cease, without, however, limiting in any way any obligation the Issuer may
have to pay the principal of or premium, if any, and interest on this Security
as the same shall become due.
(b) In any case where the due date for the payment of the principal of
and premium, if any, or interest on any Security or the date fixed for
redemption of any Security shall be at any place of payment a day on which
banking institutions in such place or in Tokyo or London are authorized or
obligated by law to close, then payment of principal, premium or interest need
not be made on such date at such place but may be made on the next succeeding
day at such place which is not a day on which banking institutions in such place
or in Tokyo or London are authorized or obligated by law to close, with the same
force and effect as if made on the date for such payment or the date fixed for
redemption, and no interest shall accrue for the period after such date.
5. (a) On November 1, 2006 and on any Interest Payment Date
thereafter, the Securities are subject to redemption, at the option of the
Issuer in whole or in part, upon not less than 30 nor more than 60 days' prior
written notice given as hereinafter provided, at a redemption price equal to the
Make Whole Redemption Amount.
(b) In the case of any partial redemption of Securities, the
Securities to be redeemed shall be selected by the Fiscal Agent not more than 60
days prior to the redemption date, from the Outstanding Securities not
previously called for redemption, by prorating, as
D-3
nearly as may be practicable, the principal amount of Securities to be redeemed.
In any proration pursuant to this Condition 5, the Fiscal Agent shall make such
adjustments, reallocations and eliminations as it shall deem proper to the end
that the principal amount of Securities so prorated shall be (Yen)l,000,000,000
or a multiple thereof, by increasing or decreasing or eliminating the amount
which would be allocable to any Holder on the basis of exact proportion by an
amount not to exceed (Yen)1,000,000,000.
(c) Notices to redeem Securities shall be given in writing mailed,
first-class postage prepaid, to each Holder of Securities, or portions thereof,
so to be redeemed, at his address as it appears in the Security Register.
Neither the failure to give notice nor any defect in any notice given to any
particular Holder of a Security shall affect the sufficiency of any notice with
respect to other Securities. Notices to redeem Securities shall specify the
date fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of the Securities to
be redeemed (or portion thereof in the case of a partial redemption of a
Security), that interest accrued to the date fixed for redemption (unless the
redemption date is an Interest Payment Date) will be paid as specified in said
notice, and that on and after said date interest thereon will cease to accrue.
(d) If notice of redemption has been given in the manner set forth in
clause (c) of this Condition 5 the Securities so to be redeemed shall become due
and payable on the redemption date specified in such notice and upon
presentation and surrender of the Securities at the place or places specified in
such notice the Securities shall be paid and redeemed by the Issuer at the
places and in the manner herein specified and at the redemption price herein
specified together with accrued interest (unless the redemption date is an
Interest Payment Date) to the redemption date. From and after the redemption
date, if monies for the redemption of Securities called for redemption shall
have been made available at the corporate trust office of the Fiscal Agent for
redemption on the redemption date, the Securities called for redemption shall
cease to bear interest and the only right of the holders of such Securities
shall be to receive payment of the redemption price together with accrued
interest (unless the redemption date is an Interest Payment Date) to the
redemption date as aforesaid. If monies for the redemption of the Securities
are not made available for payment until after the redemption date, the
Securities called for redemption shall not cease to bear interest until such
monies have been so made available.
(e) Any Security which is to be redeemed only in part shall be
surrendered with, if the Issuer or the Fiscal Agent so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Issuer and
the Fiscal Agent duly executed by, the Holder thereof or his attorney duly
authorized in writing, and the Issuer shall execute, and the Fiscal Agent shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
(f) Securities redeemed or otherwise acquired by the Issuer or their
subsidiaries will forthwith be delivered to the Fiscal Agent for cancellation
and may not be reissued or resold.
D-4
The following terms used in this Condition 5 shall have the following
meanings:
"Adjusted JGB Rate" means a rate of interest per annum calculated by
the Calculation Agent corresponding to the calculated yield per annum of a
Japanese Government Bond ("JGB") bearing a maturity equal to the Remaining Term,
such yield to be interpolated between the yields on (i) the JGB with a constant
maturity closest to and greater than the Remaining Term and (ii) the JGB with a
constant maturity closest to and less than the Remaining Term, plus the Credit
Spread.
"Calculation Agent" means Xxxxxxx Xxxxx International or, if it is
unavailable or unwilling to serve, any other banking or investment banking firm
of recognized international standing appointed from time to time by the Issuer
to act as Calculation Agent hereunder.
"Credit Spread" means .45 per cent. from November 1, 2006 to and
including November 1, 2011, and .25 per cent. thereafter.
"Make Whole Redemption Amount" in respect of any Security means the
aggregate present value as of such date of each yen of principal being redeemed
or paid and the amount of interest (exclusive of interest accrued to such date)
that would have been payable in respect of each such yen if such redemption or
payment had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Adjusted JGB Rate from the respective dates
on which principal and interest would have been payable if such redemption or
payment had not been made; provided, however, that beginning November 1, 2006 to
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and including November 1, 2011, such amount shall not be less than 100 per cent.
of the aggregate principal amount of the Securities being so redeemed.
"Remaining Term" means the remaining term of the Securities from the
redemption date.
6. In the event of the occurrence of any of the following
events (each, an "Event of Default")
(a) default in the payment of the principal of or premium, if any, of
any Security when due (whether at maturity, upon redemption or otherwise); or
(b) default in the payment of any interest on any Security for a
period of more than 30 days after the date when due; or
(c) default in the performance or breach of any other covenant,
warranty or agreement contained in the Securities or, if applicable to the
Securities, in the Fiscal Agency Agreement for a period of 60 days after the
date on which written notice of such default requiring the Issuer to remedy the
same and stating that such notice is a "Notice of Default" shall first have been
given to the Issuer by the Fiscal Agent or to the Issuer and the Fiscal Agent by
the holders of at least 25% in aggregate principal amount of the Outstanding
Securities; or
(d) default under any bond, debenture, note or other evidence of
indebtedness for money borrowed of the Issuer or under any mortgage, indenture
or instrument
D-5
under which there may be issued or by which there may be secured or evidenced
any indebtedness for money borrowed of the Issuer with a principal amount then
outstanding, individually or in the aggregate, in excess of $25,000,000, whether
such indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay any portion of the principal of such indebtedness
when due and payable after the expiration of any applicable grace period with
respect thereto or shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, without such indebtedness having been discharged or such
failure to pay or such acceleration having been rescinded or annulled, within a
period of 30 days after the date on which written notice of such failure to pay
or such acceleration, requiring the Issuer to remedy the same and stating that
such notice is a "Notice of Default", shall first have been given to the Issuer
by the Fiscal Agent or to the Issuer and the Fiscal Agent by the holders of at
least 25% in aggregate principal amount of the Outstanding Securities; or
(e) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Issuer in an involuntary case or
proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law or (ii) a decree or order adjudging the Issuer a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Issuer under any
applicable law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Issuer or of any
substantial part of the property of the Issuer, or ordering the winding up or
liquidation of the affairs of the Issuer, and any such decree or order for
relief or any such other decree or order shall continue unstayed and in effect
for a period of 60 consecutive days; or
(f) commencement by the Issuer of a voluntary case or proceeding under
any applicable bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Issuer to the entry of a decree or order for relief in respect of
the Issuer in an involuntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Issuer, or the filing by
the Issuer of a petition or answer or consent seeking reorganization or relief
under any such applicable law, or the consent by the Issuer to the filing of
such petition or to the appointment of or the taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Issuer or of any substantial part of its property, or the making by the
Issuer of an assignment for the benefit of creditors, or the taking of action by
the Issuer in furtherance of any such action;
then, in the case of any Event of Default specified in clause (e) or (f) above,
the principal of, any accrued interest on and any unpaid additional amounts in
respect of the Securities then Outstanding (as such term is defined in the
Fiscal Agency Agreement) shall ipso facto become immediately due and payable
---- -----
without any declaration or other act on the part of the Fiscal Agent or the
holder of any Security. If any Event of Default specified in clause (a) or (b)
above occurs and is continuing, the holder of any Security may, by notice in
writing to the Issuer, declare the principal of such Security to be immediately
due and payable, and upon such declaration the principal of and any accrued
interest on such Security shall become immediately
D-6
due and payable. If any other Event of Default shall have occurred and be
continuing, the Fiscal Agent shall, at the request of the holders of not less
than 25% in principal amount of the Outstanding Securities, by written notice to
the Issuer, declare the principal of all the Securities to be due and payable
immediately, and upon such declaration the principal of and any accrued interest
on shall become immediately due and payable. The right of the Fiscal Agent to
give any such notice shall terminate if the Event of Default giving rise to such
right shall have been cured before such right is exercised.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained, the
holders of a majority in principal amount of the Outstanding Securities, by
written notice to the Issuer and the Fiscal Agent, may rescind and annul such
declaration and its consequences if
(1) the Issuer has paid or deposited with the Fiscal Agent, a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and, to the extent
that payment of such interest is lawful, interest thereon at the rate
provided herein, and
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided herein,
and
(2) all Events of Default, other than the nonpayment of the principal
of Securities which have become due solely by such declaration of
acceleration, have been cured or waived.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
As provided in Section 17 of the Fiscal Agency Agreement, Terms and
Conditions 7 through 11, inclusive, may be omitted from the "Terms and
Conditions" of the Securities, but shall remain applicable to the Securities.
7. For so long as any of the Securities remain Outstanding or
any amount remains unpaid on any of the Securities, the Issuer will comply with
the terms of the covenants set forth below:
(a) The Issuer shall at all times preserve and keep in full force and
effect its corporate existence and rights and franchises material to its
business and its goodwill and the business and the goodwill of each of its
Subsidiaries, except where the failure to do so would not in the aggregate have
a Material Adverse Effect (as defined below).
D-7
(b) The Issuer shall comply with the requirements of each applicable
Requirement of Law (as defined below), except where the failure to do so would
not in the aggregate have a Material Adverse Effect.
(c) The Issuer shall pay, and cause each of its Subsidiaries (as
defined below) to pay, all taxes, assessments and other governmental charges
(other than taxes, assessments and other governmental charges not exceeding
$5,000,000 in the aggregate) imposed upon them or any of their properties or
assets or in respect of any of their franchises, business, income or property
before any penalty or interest accrues thereon, and all claims (including,
without limitation, claims for labor, services, materials and supplies) for sums
(other than claims not exceeding $5,000,000 in the aggregate) which have become
due and payable and which by law have or may become a Lien (as defined below)
upon any of their properties or assets, prior to the time when any penalty or
fine shall be incurred with respect thereto; provided that no such governmental
charge or claim need be paid if it is being contested in good faith by
appropriate proceedings and if such reserve or other appropriate provision, if
any, as shall be required in conformity with GAAP shall have been made therefor.
(d) The Issuer shall maintain or cause to be maintained in good
repair, working order and condition all properties used or useful in the
business of the Issuer and its Subsidiaries and from time to time will make or
cause to be made all appropriate repairs, renewals and replacements thereof, if
the failure to perform such actions would in the aggregate have a Material
Adverse Effect. The Issuer shall maintain or cause to be maintained, through
self-insurance or with financially sound and reputable insurers, insurance with
respect to its properties and business and the properties and business of its
Subsidiaries against loss or damage of the kinds customarily insured against by
corporations of established reputation engaged in the same or similar businesses
and similarly situated, of such types and in such amounts as are customarily
carried under similar circumstances by such other corporations, if the failure
to do so would (as to all such failures in the aggregate) have a Material
Adverse Effect.
(e) The following terms used in this Condition 7 and/or, as
applicable, in Conditions 8 or 9, shall have the following meanings:
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Indebtedness," in respect of any sale and leaseback
transaction, means, as of the time of determination, the total obligation
(discounted to present value at the rate per annum equal to the discount rate
which would be applicable to a capital lease obligation with like term in
accordance with generally accepted accounting principles) of the lessee for
rental payments (other than amounts required to be paid on account of property
taxes, maintenance, repairs, insurance, water rates and other items which do not
constitute payments
D-8
for property rights) during the remaining portion of the initial term of the
lease included in such sale and leaseback transaction.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (i) all current liabilities (excluding any indebtedness for
money borrowed having a maturity of less than 12 months from the date of the
most recent consolidated balance sheet of the Issuer but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower) and (ii) all goodwill, trade names, patents, unamortized debt discount
and expense and any other like intangibles, all as set forth on the most recent
consolidated balance sheet of the Issuer and computed in accordance with
generally accepted accounting principles.
"Funded Indebtedness" means (i) all Indebtedness having a maturity of
more than 12 months from the date as of which the determination is made or
having a maturity of 12 months or less but by its terms being renewable or
extendible beyond 12 months from such date at the option of the borrower and
(ii) rental obligations payable more than 12 months from such date under leases
which are capitalized in accordance with generally accepted accounting
principles (such rental obligations to be included as Funded Indebtedness at the
amount so capitalized as of such date of determination).
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), or in such other statements by such other entity as may be in
general use by significant segments of the U.S. accounting profession, which are
applicable to the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Indebtedness" means obligations (other than nonrecourse obligations)
of, or guaranteed or assumed by, the Issuer for borrowed money, including
obligations evidenced by bonds, debentures, notes or other similar instruments
and reimbursement and cash collateralization of letters of credit, bankers'
acceptances, interest rate hedge and currency hedge agreements.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
D-9
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) of the Issuer and its Subsidiaries taken as a whole;
(b) a material impairment of the ability of the Issuer to perform under the
Fiscal Agency Agreement or the Securities, and to avoid any Event of Default; or
(c) a material adverse effect upon the legality, validity, binding effect or
enforceability against the Issuer of the Fiscal Agency Agreement or the
Securities.
"Officers' Certificate," when used with reference to the Issuer, means
a written certificate signed by any one of the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Financial Officer or any Vice
President of the Issuer and by any one of the Treasurer, the Controller, an
Assistant Treasurer, an Assistant Controller, the Secretary or an Assistant
Secretary of the Issuer, and delivered to the Fiscal Agent.
"Opinion of Counsel" means a written opinion of counsel selected by
the Issuer, which counsel shall be reasonably acceptable to the Fiscal Agent.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Principal Property" means any contiguous or proximate parcel of real
property owned by, or leased to, the Issuer or any of its Restricted
Subsidiaries, and any equipment located at or comprising a part of any such
property, having a gross book value (without deduction of any depreciation
reserves), as of the date of determination, in excess of 1.0% of Consolidated
Net Tangible Assets.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Restricted Subsidiary" means any Subsidiary of the Issuer which owns
or leases a Principal Property.
"Subsidiary" of the Issuer means any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting stock or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Issuer, or
one or more of the Subsidiaries of the Issuer, or a combination thereof.
8. (a) The Issuer will not, and will not permit any Restricted
Subsidiary to, enter into any sale and leaseback transaction with respect to any
Principal Property unless: (i) the sale and leaseback transaction is solely with
the Issuer or another Restricted Subsidiary; (ii) the lease is for a period not
in excess of three years, including renewal rights; (iii) the lease secures or
relates to industrial revenue or pollution control bonds; (iv) the Issuer or
such Restricted Subsidiary would (at the time of entering into such arrangement)
be entitled as
D-10
described in clauses (i) through (viii) of the second paragraph of subparagraph
(b), without equally and ratably securing this Security, to create, incur,
issue, assume or guarantee Indebtedness secured by a Lien on such Principal
Property in the amount of the Attributable Indebtedness arising from such sale
and leaseback transaction; (v) the Issuer or such Restricted Subsidiary, within
180 days after the sale of such Principal Property in connection with such sale
and leaseback transaction is completed, applies an amount equal to the greater
of (A) the net proceeds of the sale of the Principal Property leased or (B) the
fair market value of the Principal Property leased to (1) the retirement of
Securities, other Funded Indebtedness of the Issuer ranking on a parity with the
Securities, or Funded Indebtedness of a Restricted Subsidiary or (2) the
purchase of other property which will constitute a Principal Property having a
value at least equal to the value of the Principal Property leased; or (vi) the
Attributable Indebtedness of the Issuer and its Restricted Subsidiaries in
respect of such sale and leaseback transaction and all other sale and leaseback
transactions entered into after the date of the Fiscal Agency Agreement (other
than any such sale and leaseback transactions as would be permitted as described
in clauses (i) through (v) of this sentence), plus the aggregate principal
amount of Indebtedness secured by Liens on Principal Properties then outstanding
(not including any such Indebtedness secured by Liens described in clauses (i)
through (viii) of the second paragraph of subparagraph (b) below) which do not
equally and ratably secure such outstanding Securities (or secure such
outstanding Securities on a basis that is prior to other Indebtedness secured
thereby), would not exceed 10% of Consolidated Net Tangible Assets.
(b) The Issuer will not, and will not permit any Restricted Subsidiary
to, create, incur, issue, assume or guarantee any Indebtedness secured by a Lien
upon any Principal Property, or upon shares of capital stock or Indebtedness
issued by any Restricted Subsidiary and owned by the Issuer or any Restricted
Subsidiary, now or hereafter acquired, without effectively providing
concurrently that this Security is secured equally and ratably with or, at the
option of the Issuer, prior to such Indebtedness so long as such Indebtedness
shall be so secured.
The foregoing restriction shall not apply to, and there shall be
excluded from Indebtedness in any computation under such restriction,
Indebtedness secured by (i) Liens on any property existing at the time of the
acquisition thereof; (ii) Liens on property of a corporation existing at the
time such corporation is merged into or consolidated with the Issuer or a
Restricted Subsidiary or at the time of a sale, lease or other disposition all
or substantially all of the properties of such corporation (or a division
thereof) to the Issuer or a Restricted Subsidiary, provided that any such Lien
--------
does not extend to any property owned by the Issuer or any Restricted Subsidiary
immediately prior to such merger, consolidation, sale, lease or disposition;
(iii) Liens on property of a corporation existing at the time such corporation
becomes a Restricted Subsidiary; (iv) Liens in favor of the Issuer or a
Restricted Subsidiary; (v) Liens to secure all or part of the cost of
acquisition, construction, development or improvement of the underlying
property, or to secure Indebtedness incurred to provide funds for any such
purpose, provided that the commitment of the creditor to extend the credit
--------
secured by any such Lien shall have been obtained not later than 180 days after
the later of (A) the completion of the acquisition, construction, development or
improvement of such property or (B) the placing in operation of such property or
of such property as so constructed, developed or improved; (vi) Liens in favor
of the United States of America or any State thereof, or any department, agency
D-11
or instrumentality or political subdivision thereof, to secure partial,
progress, advance or other payments; (vii) Liens securing industrial revenue or
pollution control bonds; and (viii) Liens existing on the date of the Fiscal
Agency Agreement or any extension, renewal or replacement or refunding of any
Indebtedness secured by a Lien existing on the date of the Fiscal Agency
Agreement or referred to in clause (i), (ii), (iii) or (v); provided, however,
-------- -------
that the principal amount of Indebtedness secured thereby and not otherwise
authorized by clauses (i) through (vii) shall not exceed the principal amount of
Indebtedness, plus any premium or fee payable in connection with any such
extension, renewal, replacement, or refunding, so secured at the time of such
extension, renewal, replacement or refunding.
Notwithstanding the restrictions described above, the Issuer and its
Restricted Subsidiaries may create, incur, issue, assume or guarantee
Indebtedness secured by Liens without equally and ratably securing this Security
if, at the time of such creation, incurrence, issuance, assumption or guarantee,
after giving effect thereto and to the retirement of any Indebtedness which is
concurrently being retired, the aggregate amount of all outstanding Indebtedness
secured by Liens which would otherwise be subject to such restrictions (other
than any Indebtedness secured by Liens permitted as described in clauses (i)
through (viii) of the immediately preceding paragraph) plus all Attributable
Indebtedness in respect of sale and leaseback transactions with respect to
Principal Properties (with the exception of such transactions which are
permitted under clauses (i) through (v) of the first sentence of the first
paragraph of subparagraph (a) above) does not exceed 10% of Consolidated Net
Tangible Assets.
9. (a) The Issuer shall not consolidate with or merge into any
other Person or convey, transfer or lease all or substantially all of the
Issuer's properties and assets to any Person, and the Issuer shall not permit
any Person to consolidate with or merge into the Issuer or convey, transfer or
lease its properties and assets substantially as an entirety to the Issuer,
unless:
(i) in case the Issuer shall consolidate with or merge into another
Person or convey, transfer or lease all or substantially all of the
Issuer's properties and assets to any Person, the Person formed by such
consolidation or into which the Issuer is merged or the Person which
acquires by conveyance or transfer, or which leases, all or substantially
all of the Issuer's properties and assets shall be a corporation,
partnership, trust or other entity, shall be organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an amendment to the
Fiscal Agency Agreement, executed and delivered to the Fiscal Agent, in
form satisfactory to the Fiscal Agent, the due and punctual payment of the
principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of the Fiscal Agency Agreement
on the part of the Issuer to be performed or observed;
(ii) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Issuer or any
Subsidiary as a result of such transaction as having been incurred by the
Issuer or such Subsidiary at the time of
D-12
such transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing;
(iii) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Issuer would
become subject to a Lien which would not be permitted by the Fiscal Agency
Agreement, the Issuer or such successor Person, as the case may be, shall
take such steps as shall be necessary effectively to secure this Security
equally and ratably with (or prior to) all indebtedness secured thereby;
and
(iv) the Issuer has delivered to the Fiscal Agent an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if an amendment
to the Fiscal Agency Agreement is required in connection with such
transaction, such amendment comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
(b) Upon any consolidation of the Issuer with, or merger of the
Issuer into, any other Person or any conveyance, transfer, sale or lease of all
or substantially all the properties and assets of the Issuer in accordance with
subparagraph (a) above, the successor Person formed by such consolidation or
into which the Issuer is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Issuer under the Fiscal Agency Agreement with the same effect
as if such successor Person had been named as the Issuer herein, and thereafter
the predecessor Person shall be relieved of all obligations and covenants under
the Fiscal Agency Agreement and this Security.
10. Section 7 of the Fiscal Agency Agreement, which requires the
Issuer to provide the Fiscal Agent with certain information is hereby
incorporated mutatis mutandis by reference herein.
------- --------
11. If any mutilated Security is surrendered to the Fiscal Agent
or a Paying Agent, the Issuer shall execute, and the Fiscal Agent or such Paying
Agent, as the case may be, shall authenticate and deliver in exchange therefor,
a new Security of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
If there shall be delivered to (x) the Issuer and (y) the Fiscal Agent
or a Paying Agent (i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may be required by
them to save each of them and any agent of each of them harmless, then, in the
absence of notice to the Issuer or the Fiscal Agent or any such Paying Agent
that such Security has been acquired by a bona fide purchaser, the Issuer shall
execute, and upon their request the Fiscal Agent or such Paying Agent shall
authenticate and deliver in lieu of any such destroyed, lost or stolen Security,
a new Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
D-13
Upon the issuance of any new Security under this Condition, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and the expenses of the Fiscal Agent or such Paying
Agent) connected therewith.
Every new Security issued pursuant to this Condition in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone.
Any new Security delivered pursuant to this Condition shall be so
dated that neither gain nor loss in interest shall result from such exchange.
The provisions of this Condition 11 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
12. Section 11 of the Fiscal Agency Agreement, which Section is
hereby incorporated mutates mutandis by reference herein, provides that, with
------- --------
certain exceptions as therein provided and with the consent of the holders of a
majority in aggregate principal amount of the Outstanding Securities present at
a meeting duly called pursuant thereto or by written consent of a majority in
aggregate principal amount of all Outstanding Securities, the Issuer and the
Fiscal Agent may, but shall not be obligated to, modify, amend or supplement the
Fiscal Agency Agreement or the terms of the Securities or may give consents or
waivers or take other actions with respect thereto. Any such modification,
amendment, supplement, consent, waiver or other action shall be conclusive and
binding on the Holder of this Security and on all future holders of this
Security and of any Security issued in exchange therefor or in lieu thereof,
whether or not notation thereof is made upon this Security. The Fiscal Agency
Agreement and the terms of the Securities may be modified or amended by the
Issuer and the Fiscal Agent, without the consent of any holders of Securities
for the purpose of (i) adding to the covenants of the Issuer for the benefit of
the holders of Securities or (ii) surrendering any right or power conferred upon
the Issuer, or (iii) securing the Securities pursuant to the requirements of the
Securities or otherwise, or (iv) relaxing or eliminating the restrictions on
payment of principal or interest in respect of Securities in the United States
to the extent then permitted under applicable regulations of the United States
Department of the Treasury, and provided no adverse tax consequences would
result to the Holders of the Securities or (v) evidencing the succession of a
Successor Person to the Issuer and the assumption by any such Successor Person
of the covenants and obligations of the Issuer in the Securities or in the
Fiscal Agency Agreement pursuant to Condition 9 thereof or (vi) correcting or
supplementing any defective provision contained in the Securities or in the
Fiscal Agency Agreement, to all of which each holder of any Security, by
acceptance thereof, consents.
13. No reference herein to the Fiscal Agency Agreement and no
provision of this Security or of the Fiscal Agency Agreement shall alter or
impair the obligation of the Issuer, which is absolute and unconditional to pay
the principal of and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
D-14
14. If a judgment or order is given by a court or tribunal of any
particular jurisdiction for the payment of any amounts owing under any of the
Securities to the holders thereof, such judgment or order is expressed in a
currency other than Yen, and the amount which is received (or could have been
received) by converting such other currency to Yen promptly following receipt at
the prevailing rate of exchange in a foreign exchange market reasonably selected
by such holder of Securities is less than the amount owed by the Issuer in Yen,
then the Issuer shall indemnify and hold each affected holder of Securities
harmless against the deficiency and any direct loss sustained as a result
thereof. The Issuer shall also pay the reasonable cost of the conversion but
shall not be obligated to pay any special or consequential damages.
15. (a) This Security shall be governed by and construed in
accordance with the laws of the State of New York.
(b) The Issuer has appointed Citibank, N.A., 000 Xxxx Xxxxxx in the
Borough of Manhattan, The City of New York (attention: Corporate Trust
Administration) and its successors as its Authorized Agent upon which process
may be served in any action arising out of or based on the Securities or this
Agreement which may be instituted in any State or Federal court in the City of
New York by the holder of any Security and expressly accepts the jurisdiction of
any such court in respect of such action. Such appointment, which the Fiscal
Agent hereby accepts, shall be irrevocable until all amounts in respect of the
principal of (and premium, if any) and any interest due and to become due on or
in respect of all the Securities have been either paid or discharged in full,
unless and until a successor Fiscal Agent shall have been appointed as such
Authorized Agent and shall have accepted such appointment. The Issuer shall
take any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment or appointments
in full force and effect as aforesaid. Service of process upon the Authorized
Agent at the address indicated above, as such address may be changed within the
Borough of Manhattan, The City of New York by notice given by the Authorized
Agent to the holders hereof, shall be deemed, in every respect, effective
service of process upon the Issuer.
(c) Notwithstanding the foregoing, any action arising out of or based
on the Securities may be instituted by the holder of any Security in any other
court of competent jurisdiction.
D-15
EXHIBIT E
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR OR CEDEL
CERTIFICATE
LEVI XXXXXXX & CO.
(Yen)20,000,000,000 4.25 percent. Bonds due November 22, 2016
Reference is hereby made to the Fiscal Agency Agreement, dated as of
November 22, 1996 (the "Fiscal Agency Agreement"), between Levi Xxxxxxx & Co.,
as Issuer, and Citibank, N.A. (London Branch), as Fiscal Agent. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Fiscal Agency Agreement.
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Fiscal Agency Agreement, as of the date hereof,
(Yen)_______ aggregate principal amount of the above-captioned Securities are
beneficially owned by non-U.S. Persons and are not held for purposes of resale
directly or indirectly to a U.S. Person or to a person within the United States
or its possessions.
As used herein, "United States" means the United States of America,
its territories and possessions, any state of the United States, and the
District of Columbia. As used herein, U.S. Person has the meaning assigned to
it in Rule 902 under the Securities Act of 1933, as amended.
We further certify that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
E-1
We understand that this certification is required in connection with
certain securities laws of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings. This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and Xxxxxxx Sachs International as
the initial purchasers of the Securities.
Dated: ____________, 199_
By:_________________________
[XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, BRUSSELS
OFFICE, as
Operator of the Euroclear Clearance
System][or]
[CEDEL BANK, SOCIETE ANONYME]
E-2
EXHIBIT F
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS
CERTIFICATE
LEVI XXXXXXX & CO.
(Yen)20,000,000,000 4.25 percent. Bonds due November 22, 2016
Reference is hereby made to the Fiscal Agency Agreement, dated as of
November 22, 1996 (the "Fiscal Agency Agreement"), between Levi Xxxxxxx & Co.,
as Issuer, and Citibank, N.A. (London Branch), as Fiscal Agent. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Fiscal Agency Agreement.
This certificate relates to (Yen)_______________ aggregate principal
amount of Securities which are evidenced by the Temporary Global Security and
held with the Common Depositary through Euroclear or CEDEL or both in the name
of _______________ [insert name of holder] (the "Holder").
In respect of such Securities, the Holder does hereby certify that as
of the date hereof, the above-captioned Securities are beneficially owned by
non-U.S. Persons and are not held for purposes of resale directly or indirectly
to a U.S. Person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America,
its territories and possessions, any state of the United States, and the
District of Columbia. As used herein, U.S. Person has the meaning assigned to
it in Rule 902 under the Securities Act of 1933, as amended.
We undertake to advise you immediately by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
F-1
We understand that this certification is required in connection with
certain securities laws in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings. This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and Xxxxxxx Sachs International as
the initial purchaser of the Securities.
Dated: ____________, 199_*
__________________________
Account Holder
______________________________
* To be dated no earlier than 15 days prior to the exchange date to which
the certification relates.
F-2
