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EXHIBIT 4.2
DOLE FOOD COMPANY, INC.,
as Issuer,
and
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
----------
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 30, 2002
Supplementing the Trust
Indenture Dated as of July 15, 1993
----------
$400,000,000
7 1/4% Notes due 2009
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FIRST SUPPLEMENTAL INDENTURE, dated as of
April 30, 2002, between DOLE FOOD
COMPANY, INC., a Delaware corporation (the "Company"), and J.P.
Morgan Trust
Company, National Association (formerly known as the Chase
Manhattan Bank and
Trust Company, National Association, and formerly known as Chemical
Trust
Company of California), having its principal corporate trust office
in San
Francisco, California, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company has heretofore
executed and delivered to the Trustee
an Indenture, dated as of July 15, 1993 (the "Original Indenture"
and, together
with the Officers' Certificate under Sections 102, 201, 301 and 303
of the
Original Indenture, dated as of October 6, 1998 (the "1998
Officers'
Certificate"), the Officers' Certificate under Section 201, 301 and
303 of the
Original Indenture dated as of August 3, 1993 (the "1993 Officers'
Certificate")
and this First Supplemental Indenture, the "Indenture"), providing
for the
issuance by the Company from time to time of its unsecured debt
securities to be
issued in one or more series (in the Original Indenture and herein
called the
"Securities");
WHEREAS, Section 301 of the Original
Indenture provides for various matters
with respect to any series of Securities issued under the Original
Indenture to
be established in an indenture supplemental to the Indenture;
WHEREAS, Section 901(5) of the Original
Indenture provides for certain
changes in the Indenture with respect to any series of Securities
issued under
the Original Indenture, provided that such changes do not affect
any outstanding
Securities under the Original Indenture;
WHEREAS, Section 901(6) of the Original
Indenture provides for the Company
and the Trustee to enter into an indenture supplemental to the
Original
Indenture to establish the form or terms of Securities of any
series as
permitted by Sections 201 and 301 of the Original Indenture;
WHEREAS, the Company, in the exercise of
the power and authority conferred
upon and reserved to it under the provisions of the Original
Indenture, has duly
determined to make, execute and deliver to the Trustee this First
Supplemental
Indenture to the Original Indenture in order to establish the form
and terms of,
and to provide for the creation and issue of, a series of
Securities designated
as the "7 1/4% Senior Notes due 2009" (the "Notes") under the
Original
Indenture in the initial aggregate principal amount of
$400,000,000; and
WHEREAS, all things necessary to make the
Notes, when executed by the
Company and authenticated and delivered by the Trustee or any
Authenticating
Agent and issued upon the terms and subject to the conditions
hereinafter and in
the Indenture set forth against payment therefor, the valid,
binding and legal
obligations of the Company and to make this First Supplemental
Indenture a
valid, binding and legal agreement of the Company, have been
done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL
INDENTURE WITNESSETH that, in order
to establish the terms of a series of Securities designated as the
"7 1/4%
Senior Notes due 2009", and for and in consideration of the
premises and of the
covenants contained in the Original Indenture and in this First
Supplemental
Indenture and for other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, it is mutually
covenanted and
agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. Each capitalized
term that is used herein and is
defined in the Original Indenture shall have the meaning specified
in the
Original Indenture unless such term is otherwise defined
herein.
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"Additional Interest" means all Additional
Interest then owing under
Section 2(e) of the Registration Rights Agreement.
"Attributable Debt" means, as to any
particular lease under which the
Company or any Restricted Subsidiary is at the time liable and at
any date as of
which the amount thereof is to be determined, the total net amount
of rent
required to be paid under that lease during its remaining term
(including any
period for which the lease has been extended or may, at the option
of the
lessor, be extended), discounted from the respective due dates
thereof to such
date at a rate per year equal to the weighted average interest rate
per year
borne by the Securities of each series outstanding pursuant to the
Indenture
compounded semiannually. The net amount of rent required to be paid
under any
such lease for any such period shall be the aggregate amount of the
rent payable
by the lessee with respect to that period after excluding amounts
required to be
paid on account of maintenance and repairs, insurance, taxes,
assessments, water
rates and similar charges. In the case of any lease which is
terminable by the
lessee upon the payment of a penalty, the net amount shall also
include the
amount of the penalty, but no rent shall be considered as required
to be paid
under the lease subsequent to the first date upon which it may be
so terminated.
"Business Day" shall mean any day, other
than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are
authorized or
required by law, regulation or executive order to close in The City
of New York
or San Francisco, California.
"Certificated Note" means any Note other
than a Global Note.
"Clearstream" means Clearstream Banking,
societe anonyme, or any successor
thereto.
"Closing Date" shall mean the date on
which the Notes are originally issued
under this First Supplemental Indenture.
"Commission" shall mean the United States
Securities and Exchange
Commission or any successor agency or government body performing
the functions
currently performed by the United States Securities and Exchange
Commission.
"CUSIP Number" means the alphanumeric
designation assigned to a Note by
Standard & Poor's CUSIP Service Bureau.
"Depositary" has the meaning set forth in
Section 210(a) hereof.
"Distribution Compliance Period" means the
40 calendar days after the
Closing Date, except that all offers and sales by a distributor (as
defined in
Regulation S) of an unsold allotment or subscription shall be
deemed to be made
during the "Distribution Compliance Period".
"DTC" shall mean The Depository Trust
Company or any successor Depositary
with respect to the Global Notes.
"DTC Participant" shall mean any person
that has an account with DTC
through which beneficial owners acquire and hold an interest in the
Notes.
"Euroclear" means Euroclear Bank
S.A./N.V., as operator of the Euroclear
System, or any successor thereto.
"Exchange Notes" means any debt securities
of the Company to be offered to
Holders of Notes in exchange for the Notes pursuant to the Exchange
Offer or
otherwise pursuant to a Registration of Notes containing terms
identical in all
material respects to the Notes for which they are exchanged, except
that (i)
interest on the Exchange Notes shall accrue from the last date on
which interest
was paid on the Notes or, if no such interest has been paid, from
the Closing
Date and (ii) the Exchange Notes will not contain terms with
respect to transfer
restrictions, minimum purchase or the payment of Additional
Interest upon the
occurrence of a Registration Default.
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"Exchange Offer" means the exchange offer
by the Company of Exchange Notes
for Notes pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement"
means a Registration Statement of
the Company under the Securities Act registering Exchange Notes for
distribution
pursuant to the Exchange Offer.
"Funded Debt" means (i) all Indebtedness
of the Company and the Restricted
Subsidiaries maturing on, or renewable or extendible at the option
of the
obligor to, a date more than one year from the date of the
determination thereof
that is or would be classified as long-term debt on a balance sheet
prepared in
accordance with generally accepted accounting principles (including
Indebtedness
under any revolving credit arrangement with banks), (ii)
guarantees, direct or
indirect, and other contingent obligations of the Company and the
Restricted
Subsidiaries in respect of, or to purchase or otherwise acquire or
be
responsible or liable for (through the investment of funds or
otherwise), any
Indebtedness of others (but not including contingent liabilities on
customers'
receivables sold with recourse) and (iii) amendments, renewals,
extensions and
refunding of any such Indebtedness.
"Global Note" means a Note bearing the
legend specified in Section 202 of
the Original Indenture evidencing all or part of the Notes, issued
to the
Depositary or its nominee with respect to such Notes and registered
in the name
of such Depositary or nominee.
"Indebtedness" means, with respect to any
person, every obligation of such
person for money borrowed or evidenced by bonds, debentures, notes
or other
similar instruments, whether or not for money borrowed or given in
connection
with the acquisition of any business, properties or assets,
including
securities.
"Indenture" shall have the meaning
specified in the second paragraph of the
recitals of this First Supplemental Indenture.
"Initial Purchasers" shall mean Banc of
America Securities LLC, Credit
Suisse First Boston Corporation, Commerzbank Capital Markets Corp.,
Deutsche
Bank Securities Inc., Salomon Smith Barney Inc. and Scotia Capital
(USA) Inc.,
as initial purchasers pursuant to the Purchase Agreement, dated
April 25, 2002,
among the Company and the Initial Purchasers.
"Institutional Accredited Investor" shall
mean an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1),
(2), (3) or (7)
under the Securities Act.
"Lien" means, with respect to any property
or assets, any mortgage, pledge,
security interest, lien, conditional sale or other title retention
agreement or
other similar encumbrance.
"Make-Whole Amount" means, in connection
with any optional redemption of
Notes, the excess, if any, of (a) the aggregate present value as of
the date of
such redemption of each dollar of principal being redeemed and the
amount of
interest, exclusive of interest accrued to the date of redemption,
that would
have been payable in respect of each such dollar if such redemption
had not been
made, determined by discounting, on a semiannual basis, such
principal and
interest at the Reinvestment Rate, determined on the third business
day in The
City of New York preceding the date notice of such redemption is
given, from the
respective dates on which such principal and interest would have
been payable if
such redemption had not been made, to the date of redemption, over
(b) the
aggregate principal amount of the Notes being redeemed.
"Net Tangible Assets" means the net book
value of all assets of the Company
and the Restricted Subsidiaries, excluding any amount carried as
assets for
shares of capital stock held in treasury, debt discount and
expense, investments
in and advances to Subsidiaries other than Restricted Subsidiaries,
goodwill,
patents and trademarks, less all liabilities of the Company and of
the
Restricted Subsidiaries (except Funded Debt, minority interests in
Restricted
Subsidiaries, deferred taxes and general contingency reserves of
the Company and
of the Restricted Subsidiaries), all as determined on a
consolidated basis in
accordance with generally accepted accounting principles.
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"1993 Officers' Certificate" has the
meaning set forth in the first
paragraph of the Recitals of this First Supplemental Indenture.
"1998 Officers' Certificate" has the
meaning set forth in the first
paragraph of the Recitals of this First Supplemental Indenture.
"Nonrecourse Obligation" means
indebtedness or lease payment obligations
substantially related to (i) the acquisition of assets not
previously owned by
the Company or any of the Company's Restricted Subsidiaries or (ii)
the
financing of a project involving the development or expansion of
the Company's
properties or any properties of the Restricted Subsidiaries, as to
which the
obligee with respect to such indebtedness or obligation has no
recourse to the
Company's general corporate funds or the general corporate funds of
any of the
Restricted Subsidiaries or any of the Company's assets or any
assets of the
Restricted Subsidiaries other than the assets that were acquired
with the
proceeds of such transaction or the project financed with the
proceeds of such
transaction (and funds generated by such assets or project) except
pursuant to a
covenant to pay to such obligee or to the obligor of such
indebtedness or
obligation an amount equal to all or a portion of the amount of any
dividends
received from such obligor within the previous twelve months.
"Notes" shall mean any of the Securities,
defined as Notes in the fifth
paragraph of the recitals hereof, that are authenticated and
delivered under
this First Supplemental Indenture. For all purposes of this First
Supplemental
Indenture, the term "Notes" shall include the Notes initially
issued on the
Closing Date and any Exchange Notes to be issued and exchanged for
any Notes
pursuant to the Registration Rights Agreement and this First
Supplemental
Indenture. The term "Notes" shall also include Notes issued after
the Closing
Date and designated in a Board Resolution, Officers' Certificate or
supplemental
indenture as being part of the same series as the Notes issued on
the Closing
Date and any Exchange Notes issued and exchanged for any such
Notes. For
purposes of this First Supplemental Indenture and the Indenture,
all Notes shall
vote together as one series of Securities.
"Original Indenture" shall have the
meaning specified in the first
paragraph of the recitals of this First Supplemental Indenture.
"Principal Property" means any
manufacturing plant or processing facility,
including the equipment constituting a part thereof, which is
located within the
United States or its territories or possessions, of the Company or
a Restricted
Subsidiary, having a net book value exceeding 1% of Net Tangible
Assets.
"Prospectus" shall mean the prospectus
included in a Registration
Statement, including any preliminary prospectus, and any such
prospectus as
amended or supplemented by any prospectus supplement, including any
such
prospectus supplement with respect to the terms of the offering of
any portion
of the Registrable Securities covered by a Shelf Registration
Statement, and by
all other amendments and supplements to a prospectus, including
post-effective
amendments, and in each case including all material incorporated by
reference
therein.
"QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A.
"Registrable Note" shall mean any Note
which shall be deemed a "Registrable
Security" for purposes of the Registration Rights Agreement.
"Registration" means a registered exchange
offer for the Notes by the
Company pursuant to the Exchange Offer Registration Statement or
other
registration for resale of the Notes under the Securities Act
pursuant to a
Shelf Registration Statement, in each case in accordance with the
terms of the
Registration Rights Agreement.
"Registration Rights Agreement" shall mean
the Registration Rights
Agreement, dated as of April 30, 2002, among the Company and the
Initial
Purchasers.
"Registration Default" has the meaning set
forth in the Registration Rights
Agreement.
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"Registration Statement" shall mean any
registration statement of the
Company filed with the Commission pursuant to the Securities Act
which covers
any of the Exchange Notes or Registrable Notes pursuant to the
provisions of the
Registration Rights Agreement, and all amendments and supplements
to any such
Registration Statement, including post-effective amendments, in
each case
including the Prospectus contained therein, all exhibits thereto
and all
material incorporated by reference therein.
"Regular Record Date" has the meaning set
forth in Section 204 hereof.
"Regulation S" means Regulation S under
the Securities Act.
"Regulation S Global Note" has the meaning
set forth in Section 210(b)
hereof.
"Reinvestment Rate" means 0.375% plus the
arithmetic mean of the yields
under the heading "Week Ending" published in the most recent
Statistical Release
under the caption "Treasury Constant Maturities" for the maturity,
rounded to
the nearest month, corresponding to the remaining life to maturity,
as of the
redemption date, of the principal of the Notes being redeemed. If
no maturity
exactly corresponds to such maturity, yields for the two published
maturities
most closely corresponding to such maturity shall be calculated
pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be
interpolated
or extrapolated from such yields on a straight-line basis, rounding
in each of
such relevant periods to the nearest month. For the purposes of
calculating the
Reinvestment Rate, the most recent Statistical Release published
prior to the
date of determination of the Make-Whole Amount shall be used. If
the format or
content of the Statistical Release changes in a manner that
precludes
determination of the Treasury yield in the above manner, then the
Treasury yield
shall be determined in the manner that most closely approximates
the above
manner, as reasonably determined by the Company.
"Resale Restriction Termination Date" has
the meaning set forth in the
Restrictive Legend.
"Restricted Subsidiary" means any
Subsidiary of the Company, other than any
Subsidiary that is engaged primarily in the management, development
and sale or
financing of real property.
"Restricted Certificated Note" has the
meaning set forth in Section 210(c)
hereof.
"Restrictive Legend" shall mean the legend
set forth on the face of the
Notes attached as Exhibits A and B.
"Rule 144A" shall mean Rule 144A under the
Securities Act.
"Rule 144A Global Note" has the meaning
set forth in Section 210(a) hereof.
"Sale and Leaseback Transaction" of any
person means an arrangement with
any bank, insurance company or other lender or investor, or to
which any such
bank, company, lender or investor is a party, providing for the
leasing by the
Company or any Restricted Subsidiary of any Principal Property that
has been or
is to be sold or transferred more than 180 days after the latest of
the
acquisition, completion of construction or commencement of full
operation by the
Company or any Restricted Subsidiary to such bank, insurance
company, lender or
investor, or to any person to whom funds have been or are to be
advanced by such
bank, insurance company, lender or investor on the security of such
Principal
Property.
"Securities Act" shall mean the Securities
Act of 1933, as amended from
time to time.
"Senior Funded Debt" means all Funded Debt
except Subordinated Funded Debt.
"Shelf Registration Statement" means a
shelf registration statement under
the Securities Act filed by the Company, if required by, and
meeting the
requirements of, the Registration Rights Agreement, registering
Notes for
resale.
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"Stated Maturity Date" shall have the
meaning specified in Section 203
hereof and shall constitute the "Stated Maturity" of the principal
of the Notes
as such term is defined in Section 101 of the Original
Indenture.
"Statistical Release" means the
statistical release designated "H.15(519)"
or any successor publication which is published weekly by the
Federal Reserve
System and which reports yields on actively traded United States
government
securities adjusted to constant maturities, or, if such statistical
release is
not published at the time of any required determination under the
indenture,
then such other reasonably comparable index which shall be
designated by the
Company.
"Subordinated Funded Debt" means any of
the Company's unsecured Funded Debt
that is expressly made subordinate and junior in rank and right of
payment to
any Securities of each series outstanding under the Indenture in
the event of
any insolvency or bankruptcy proceedings, and any receivership,
liquidation,
reorganization or other similar proceedings relative to the Company
or the
Company's creditors, as such, or to our property, or in the event
of any
proceedings for the Company's voluntary liquidation, dissolution or
other
winding up, whether or not involving insolvency or bankruptcy.
"Subsidiary" means a corporation more than
50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or
by one or
more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
For the purposes of this definition, "voting stock" means stock
that ordinarily
has voting power for the election of directors, whether at all
times or only so
long as no senior class of stock has such voting power by reason of
any
contingency.
"Trustee" shall mean J.P. Morgan Trust
Company, National Association (as
successor in interest to the Chase Manhattan Bank and Trust
Company, National
Association, and Chemical Trust Company of California).
"Unrestricted Certificated Note" means any
Certificated Note other than a
Restricted Certificated Note.
"Unrestricted Global Note" means any
Global Note evidencing Exchange Notes
or received in the Exchange Offer, Notes transferred pursuant to an
effective
Shelf Registration Statement or Notes issued without the
Restrictive Legend
after the Resale Restriction Termination Date.
Section 102. Section References. Each
reference to a particular section set
forth in this First Supplemental Indenture shall, unless the
context otherwise
requires, refer to this First Supplemental Indenture.
ARTICLE
TWO
TITLE AND TERMS OF THE NOTES
Section 201. Title of the Notes. Pursuant
to Sections 301 and 901 of the
Original Indenture, this First Supplemental Indenture hereby
establishes a
series of Securities designated as the "7 1/4% Senior Notes due
2009" of the
Company. For purposes of the Original Indenture, the Notes shall
constitute a
single series of Securities.
Section 202. Limitation on Aggregate
Principal Amount. The aggregate
principal amount of the Notes that may be issued under this First
Supplemental
Indenture is limited initially to $400,000,000 and the aggregate
principal
amount of Exchange Notes to be issued in the Exchange Offer is
$400,000,000;
provided that (i) additional Notes (and Exchange Notes issued in
respect of such
Notes) may be issued after the Closing Date as part of the same
series of
Securities as the Notes issued under this First Supplemental
Indenture, if so
designated in a Board Resolution, Officers' Certificate or
supplemental
indenture executed and delivered after the Closing Date, and (ii)
the limitation
on the total aggregate principal amount of Notes set forth in this
Section 202
shall not apply to such
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additional Notes (and Exchange Notes). Except as provided in this
Section 202
and Section 306 of the Original Indenture (and the terms of any
Board
Resolution, Officers' Certificate or supplemental indenture
executed and
delivered after the Closing Date), the Company shall not execute
and the Trustee
shall not authenticate or deliver Notes or Exchange Notes in excess
of the
aggregate principal amounts. Nothing contained in this Section 202
or elsewhere
in this First Supplemental Indenture, or in the Notes, is intended
to or shall
limit execution by the Company or authentication or delivery by the
Trustee of
Notes under the circumstances contemplated by Sections 303, 304,
305, 306, 906
or 1107 of the Original Indenture.
Section 203. Maturity of the Notes. The
Stated Maturity Date on which the
principal of the Notes shall be due and payable will be May 1,
2009.
Section 204. Interest and Interest Rates.
The Notes will pay interest
thereon from April 30, 2002 or from the most recent "Interest
Payment Date" to
which interest has been paid or duly provided for, semiannually on
May 1 and
November 1 of each year, commencing November 1, 2002, and on the
Stated Maturity
Date or date of any earlier redemption (if other than an Interest
Payment Date),
at the rate of 7.25% per annum, until the principal of the Notes is
paid or duly
provided for; provided that if any Registration Default with
respect to the
Notes occurs under the Registration Rights Agreement, then the
Company shall
also pay the Additional Interest, if any, payable pursuant to
Section 2(e) of
the Registration Rights Agreement on such Interest Payment Dates or
Stated
Maturity Date or date of any earlier redemption (if other than an
Interest
Payment Date). The interest so payable, and punctually paid or duly
provided
for, on any Interest Payment Date will, as provided in the
Indenture, be paid to
the person in whose name the Notes (or one or more Predecessor
Notes) are
registered at the close of business on the "Regular Record Date"
for such
interest, which shall be the April 15 or October 15 (whether or not
a Business
Day), as the case may be, next preceding such Interest Payment
Date. Any such
interest not so punctually paid or duly provided for shall
forthwith cease to be
payable to the Holder on such Regular Record Date and shall be
payable as
provided in the Indenture.
Section 205. Place of Payment. The place
or places where the principal of
and interest on the Notes shall be payable is at the agency of the
Trustee
maintained for that purpose at the office of J.P. Morgan Trust
Company, National
Association, 55 Water Street, North Building, Securities Window,
Second Floor,
New York, New York 10041 or c/o JPMorgan Chase Bank, 2001 Bryan
Street, 9th
Floor, Dallas, Texas 75201, provided, however, that payment of
interest on an
Interest Payment Date may be made at the option of the Company by
check mailed
to the address of the person entitled thereto as such address shall
appear in
the Security Register; provided, further, that all payments due on
the Stated
Maturity Date or date of any earlier redemption in respect of
principal of and
(unless such date is also an Interest Payment Date) interest on the
Notes shall
be made by the Company in immediately available funds against
presentation and
surrender thereof; and provided, further, that the Depositary, or
its nominee,
as holder of the Global Notes, shall be entitled to receive
payments of interest
by wire transfer of immediately available funds.
Section 206. Optional Redemption. The
Notes are redeemable at any time in
whole, or from time to time in part, at a Redemption Price equal to
the sum of
100% of the aggregate principal amount of the Notes being redeemed,
accrued but
unpaid interest on those Notes to the Redemption Date and the
Make-Whole Amount,
if any; provided, however, that installments of interest on Notes
due on an
Interest Payment Date that occurs on or before any Redemption Date
shall be
payable to the Holders of such Notes as of the close of business on
the Regular
Record Date immediately preceding such Interest Payment Date.
Section 207. Sinking Fund. The Notes will
not be subject to any sinking
fund provision or to repayment of the Notes prior to the Stated
Maturity Date at
the option of the Note holders.
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Section 208. Defeasance. The provisions of
Sections 1302 and 1303 of the
Original Indenture, together with the other provisions of Article
Thirteen of
the Original Indenture, shall be applicable to the Notes. The
provisions of
Section 1303 of the Original Indenture shall apply to the covenants
set forth in
Section 209 of this First Supplemental Indenture (and to events of
default with
respect to such covenants) and to those covenants and events of
default
specified in Section 1303 of the Original Indenture.
Section 209. Additional Covenants. The
following provisions set forth below
as Sections 1008 and 1009 shall apply to the Notes as if such
provisions had
been included in the Original Indenture as Sections 1008 and 1009,
respectively:
"Section 1008. Limitation Upon Liens.
The Company will not itself, and will not
permit any Restricted Subsidiary
to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise
become liable for or suffer to exist any Indebtedness secured by a
Lien on (i)
any Principal Property of the Company or any Restricted Subsidiary
or (ii) any
shares of capital stock or Indebtedness of any Restricted
Subsidiary (which
Indebtedness is then held by the Company or any Restricted
Subsidiary), without
effectively providing that the Notes (together with, if the Company
shall so
determine, any other Indebtedness of the Company or such Restricted
Subsidiary
then existing or thereafter created which is not Subordinated Debt)
shall be
secured equally and ratably with (or, at the option of the Company,
prior to)
such secured Indebtedness, so long as such secured Indebtedness
shall be so
secured, unless immediately thereafter, after giving effect
thereto, the
aggregate amount of all such secured indebtedness plus all
Attributable Debt of
the Company and its Restricted Subsidiaries in respect of Sale and
Leaseback
Transactions (but excluding leases exempt from the prohibition of
Section 1009
by Clauses (2) through (6) thereof) would not exceed 10% of Net
Tangible Assets;
provided, however, that this Section 1008 shall not apply to, and
there shall be
excluded from secured Indebtedness in any computation under this
Section 1008,
Indebtedness secured by:
1. Liens on, and limited to, property of or shares of
capital stock or
Indebtedness of any corporation existing
at April 30, 2002 or at the time
such corporation becomes a Restricted
Subsidiary;
2. Liens in favor of the Company or any Restricted
Subsidiary;
3. Liens in favor of any governmental body to secure
progress, advance or
other payments pursuant to any contract or
provision of any statute;
4. (i) if made in the ordinary course of business, any
Lien as security for
the performance of any contract or
undertaking not directly or indirectly
in connection with the borrowing of money
or the securing of Indebtedness,
or (ii) any Lien with any governmental
agency required or permitted to
qualify the Company or any Restricted
Subsidiary to conduct business, to
maintain self-insurance or to obtain the
benefits of any law pertaining to
workmen's compensation, employment
insurance, old age pensions, social
security or similar matters;
5. Liens for taxes, assessments or governmental charges
or levies if such
taxes, assessments, governmental charges
or levies shall not at the time be
due and payable, or if the same thereafter
can be paid without penalty, or
if the same are being contested in good
faith by appropriate proceedings;
6. Liens created by or resulting from any litigation or
legal proceeding which
at the time is currently being contested
in good faith by appropriate
proceedings, or Liens arising out of
judgments or awards as to which the
time for prosecuting an appeal or
proceeding for review has not expired;
7. Liens on, and limited to, property (including
leasehold estates) or shares
of capital stock or Indebtedness, existing
at the time of acquisition
thereof (including acquisition through
merger or consolidation) or to
secure the payment of all or any part of
the purchase price thereof or
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construction thereon or to secure any
Indebtedness incurred prior to, at
the time of, or within 120 days after the
latest of the acquisition, the
completion of construction or the
commencement of full operation of such
property for the purpose of financing all
or any part of the purchase price
thereof or construction thereon;
8. Liens securing obligations issued by a state,
territory or possession of
the United States, of any political
subdivision of any of the foregoing or
the District of Columbia, to finance the
acquisition or construction or
development of property, and on which the
interest is not, in the opinion
of tax counsel of recognized standing or
in accordance with a ruling issued
by the Internal Revenue Service,
includible (in whole or in part) in gross
income of the holder by reason of Section
103(a)(1) of the Internal Revenue
Code (or any successor to such provision)
as in effect at the time of the
issuance of such obligations;
9. Liens created in connection with a project financed
with, and created to
secure, a Nonrecourse Obligation; or
10. any extension, renewal or replacement (or successive
extensions, renewals
or replacements), as a whole or in part,
or any Lien referred to in the
foregoing Clauses (1) through (9), to the
extent the Indebtedness secured
by such Lien is not increased from the
amount originally so secured,
provided that such extension, renewal or
replacement Lien shall be limited
to all or a part of the same property or
shares of capital stock or
Indebtedness that secured the Lien
extended, renewed or replaced (plus
improvements on such property).
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Section 1009. Limitation Upon Sale and
Leaseback Transactions.
Except as hereinafter provided, the
Company will not itself, and will not
permit any Restricted Subsidiary to, enter into any Sale and
Leaseback
Transaction; provided, however, that this covenant shall not apply
to any Sale
and Leaseback Transaction if:
(1) the Company or such Restricted Subsidiary could create
Indebtedness secured
by a Lien pursuant to Section 1008,
excluding from secured Indebtedness in
any computation under that Section
Indebtedness secured by Liens of the
type described in Clauses (1) through (10)
thereof, on the Principal
Property to be leased in an amount equal
to the Attributable Debt with
respect to such Sale and Leaseback
Transaction without equally and ratably
securing the Notes, or
(2) the Company or a Restricted Subsidiary, within 180 days
after the sale or
transfer shall have been made by the
Company or by a Restricted Subsidiary,
applies an amount equal to the greater of
the net proceeds from the sale of
the Principal Property leased pursuant to
such arrangement or the fair
market value of the Principal Property so
leased at the time of entering
into such arrangement (as determined in
any manner approved by the Board of
Directors) to either (x) the retirement of
Senior Funded Debt of the
Company or Funded Debt of a Restricted
Subsidiary; provided, however, that
notwithstanding the foregoing, no
retirement referred to in this Clause (2)
may be effected by payment at maturity or
pursuant to any mandatory sinking
fund payment or any mandatory prepayment
provision, or (y) purchase of
other property which will constitute
Principal Property of the Company or
its Restricted Subsidiaries having a fair
market value, in the opinion of
the Board of Directors of the Company, at
least equal to the fair market
value of the Principal Property leased in
such Sale and Leaseback
Transaction, or
(3) the lease in such Sale and Leaseback Transaction is for a
period, including
renewals, of no more than three years,
or
(4) the lease in such Sale and Leaseback Transaction secure
or relates to
obligations issued by a state, territory
or possession of the United
States, or any political subdivision of
any of the foregoing, or the
District of Columbia, to finance the
acquisition or construction of
property, and on which the interest is
not, in the opinion of tax counsel
of recognized standing or in accordance
with a ruling issued by the
Internal Revenue Service, includible (in
whole or in part) in gross income
of the holder by reason of Section
103(a)(1) of the Internal Revenue Code
(or any successor to such provision) as in
effect at the time of the
issuance of such obligations, or
(5) the lease payment obligation is created in connection
with a project
financed with, and such obligation
constitutes, a Nonrecourse Obligation,
or
(6) such arrangement is between the Company and a Restricted
Subsidiary or
between Restricted Subsidiaries."
Section 210. Specific Global and
Certificated Note Forms. (a) Except as
otherwise provided herein, Notes offered and sold as part of their
initial
offering and sale to QIBs shall be issued in the form of one or
more Global
Notes (each a "Rule 144A Global Note") in definitive, fully
registered form
without coupons, substantially in the form set forth in Exhibit B,
with such
applicable legends as are provided for herein. Such Global Notes
shall be
registered in the name of Cede & Co. or another nominee
designated by DTC and
delivered to the Trustee, at its Corporate Trust Office in San
Francisco as
custodian for DTC, as duly executed by the Company and
authenticated by the
Trustee as provided in the Original Indenture. The aggregate
principal amount of
any Rule 144A Global Note may from time to time be increased or
decreased by
adjustments made on the records of the Trustee, as custodian for
DTC for such
Global Note, as provided in Section 210(e) hereof. The "Depositary"
for the
Global Notes shall be DTC or such other person as shall be
designated by the
Company as Depositary for the Company pursuant to Section 305 of
the Original
Indenture.
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(b) Except as otherwise provided herein,
Notes offered and sold as part of
their initial offering and sale in reliance on Regulation S shall
be issued in
the form of one or more Global Notes in definitive, fully
registered form
without coupons, substantially in the form set forth in Exhibit B,
with such
applicable legends as are provided for herein. Such Global Notes
shall be
registered in the name of Cede & Co. or another nominee
designated by DTC and
delivered to the Trustee, at its Corporate Trust Office in San
Francisco as
custodian for DTC, duly executed by the Company and authenticated
by the Trustee
as herein provided, for credit by DTC to the respective accounts of
beneficial
owners of such Notes (or such accounts as they may direct), which,
during the
Distribution Compliance Period, will only be Euroclear and
Clearstream. Each
such Global Note shall be referred to herein as a "Regulation S
Global Note."
The aggregate principal amount of any Regulation S Global Note may
from time to
time be increased or decreased by adjustments made on the records
of the
Trustee, as custodian for DTC for such Global Note, as provided in
Section
210(e) hereof. Except as otherwise provided herein or agreed to by
the Company,
no Regulation S Global Note shall be issued except as provided in
this paragraph
to evidence Notes offered and sold as part of their initial
distribution in
reliance on Regulation S or thereafter transferred in reliance on
Regulation S.
(c) Except as otherwise provided herein,
Notes offered and sold as part of
their initial offering and sale to Institutional Accredited
Investors who are
not QIBs shall be issued in the form of Certificated Notes in
definitive, fully
registered form without coupons, registered in the name of the
purchaser
thereof, substantially in the form set forth in Exhibit A (the
"Restricted
Certificated Notes"), with such applicable legends as are provided
for herein.
Restricted Certificated Notes may not be transferred or exchanged
for interests
in a Global Note except as provided in Section 211.
Unless exchanged for an Exchange Note in
connection with an effective
Registration pursuant to the Registration Rights Agreement, each
Rule 144A
Global Note, each Regulation S Global Note and each Restricted
Certificated Note
shall bear the Restrictive Legend on the face thereof, prior to the
Resale
Restriction Termination Date.
(d) Interests of beneficial owners in a
Global Note may be transferred in
accordance with the rules and procedures of DTC. In connection with
any transfer
of a portion of the beneficial interests in a Global Note to
beneficial owners
pursuant to Section 305 of the Original Indenture, the Security
Registrar shall
reflect on its books and records the date and a decrease in the
principal amount
of such Global Note in an amount equal to the principal amount of
the beneficial
interest in such Global Note to be transferred. Notwithstanding
Section 305 of
the Original Indenture, Restricted Certificated Notes (or Exchange
Notes) will
be issued to DTC for beneficial owners in a Global Note if
circumstances arise
described in clauses (1), (2) or (3) of the penultimate paragraph
of Section 305
of the Original Indenture.
Section 211. Special Transfer and Exchange
Provisions. Unless and until a
Note is exchanged for an Exchange Note in connection with an
effective
Registration Statement pursuant to the Registration Rights
Agreement, the
following provisions shall apply to each such Note:
(a) Transfers and Exchanges of Restricted Certificated Notes
and Interests in a
Rule 144A Global Note. With respect to the
registration of any proposed
transfer or exchange of a Restricted
Certificated Note or an interest in a
Rule 144A Global Note, if the Note to be
transferred or exchanged consists
of:
(i) a Restricted Certificated Note,
the Security Registrar shall register
the transfer
or exchange to:
(A) a
beneficial interest in a Rule 144A Global Note if such transfer
or exchange is being made by a proposed transferor or exchanger
who has delivered to the Company and the Security Registrar a
certificate from the transferor or exchanger substantially in
the
form of Exhibit C; or
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(B) a
Regulation S Global Note if such transfer or exchange is being
made by a proposed transferor or exchanger who has delivered to
the Company and the Security Registrar a certificate from the
transferor or exchanger substantially in the form of Exhibit D.
Upon
the transfer or exchange of Restricted Certificated Notes
(initially issued to an Institutional Accredited Investor) to a
QIB or in accordance with Regulation S, these Restricted
Certificated Notes may, unless the Rule 144A Global Note or the
Regulation S Note, as the case may be, has previously been
exchanged in whole for Restricted Certificated Notes, be
exchanged for a beneficial interest in the Rule 144A Global
Note
or the Regulation S Note, as the case may be, subject to the
conditions specified herein. Thereafter, transfers or exchanges
of this beneficial interest will continue to be represented by
a
Global
Note, even if this transfer or exchange is to an
Institutional Accredited Investor. Upon the transfer or
exchange
of a Restricted Certificated Note (initially issued to an
Institutional Accredited Investor) to an Institutional
Accredited
Investor, that Note will remain a Restricted Certificated Note
and will require the transferee or exchangee to deliver a
certificate to the Trustee substantially in the form provided
in
Exhibit G; or
(ii) a beneficial interest in a Rule 144A
Global Note:
(A) to
be transferred or exchanged to a transferee or exchangee who
takes delivery in the form of an interest in a Regulation S
Global Note, the Security Registrar shall register the transfer
or exchange if such transfer or exchange is being made by a
proposed transferor or exchanger who has delivered to the
Company
and the Security Registrar a
certificate substantially in the
form of Exhibit E; or
(B) to
be transferred or exchanged to a transferee or exchangee who
takes delivery in the form of an interest in a Rule 144A Global
Note, the transfer or exchange of such interest may be effected
only through the book entry system maintained by the
Depositary.
(b) Transfers and Exchanges of Interests in a Regulation S
Global Note. With
respect to registration of any proposed
transfer or exchange of a
beneficial interest in a Regulation S
Global Note to a person who takes
delivery in the form of a beneficial
interest in a Rule 144A Global Note,
the Security Registrar shall register the
transfer or exchange of any Note
if the proposed transferor or exchanger
has delivered to the Company and
the Security Registrar a certificate from
the transferor or exchanger
substantially in the form of Exhibit F. No
person shall be entitled to
effect any transfer or exchange that would
result in any beneficial
interests in a Regulation S Global Note
being held during the Distribution
Compliance Period otherwise than in or
through accounts maintained at the
