Exhibit 4.1
THE ESTÉE LAUDER COMPANIES
INC.
7.750% Senior Notes due
2013
November 4, 2008
OFFICERS’
CERTIFICATE
THE UNDERSIGNED, Richard W. Kunes
and Spencer G. Smul, do hereby certify that they are the duly
appointed, qualified and acting Executive Vice President and Chief
Financial Officer and Senior Vice President, Deputy General Counsel
and Secretary, respectively, of The Estée Lauder Companies
Inc., a Delaware corporation (the “Company”), and they
do hereby further certify that there is hereby established pursuant
to the authority granted by the resolutions adopted by the Board of
Directors of the Company at a duly held meeting of the Board of
Directors on October 27, 2008 (the “Resolutions”) and
Section 3.01 of the Indenture, dated as of November 5, 1999 (the
“Indenture”), between the Company and U.S. Bank Trust
National Association, as successor in interest to State Street Bank
and Trust Company, N.A., as trustee (the “Trustee”),
the series of Securities (as that term is used in Section 3.01 of
the Indenture) to be issued under the Indenture, which series of
Securities shall have the following terms and such additional terms
as shall be set forth in the form of Notes (as defined below)
attached hereto as Exhibit A (unless otherwise defined herein,
capitalized terms used herein have the meanings assigned thereto in
the Indenture):
1. The
Securities shall be entitled the “7.750% Senior Notes due
2013” (the “Notes”).
2. The
initial aggregate principal amount of the Notes that are to be
authenticated and delivered under the Indenture is $300,000,000,
(except for Notes authenticated and delivered upon registration of
transfer of or in exchange for, or in lieu of other Notes pursuant
to Section 3.04, 3.05, 3.06, 9.06, 11.07 or 13.05 of the
Indenture). This series may be reopened and additional Notes of
this series may be issued in accordance with the terms of the
Indenture.
3. The
principal amount of the Notes shall mature on November 1, 2013,
subject to the provisions of Section 5.02 of the Indenture
respecting acceleration.
4. The
Notes shall bear interest from November 4, 2008, or from the most
recent Interest Payment Date to which interest has been paid or
provided for, at the rate of 7.750% per annum for the Notes,
payable semiannually in arrears on May 1 and November 1 of each
year, commencing May 1, 2009, for payment to holders on the
respective Regular Record Dates, which dates shall be the next
preceding April 15 and October 15, respectively.
5. The
principal of and interest on the Notes shall be payable at, and any
Notes surrendered for registration of transfer or exchange shall be
delivered to, the office
or agency maintained by the Company
for that purpose, pursuant to the Indenture (initially the
Corporate Trust Office of the Trustee in the Borough of Manhattan,
in the City of New York); except that at the option of the Company,
interest may be paid (a) by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register or (b) by wire transfer to an account maintained
by the Person entitled thereto as specified in the Security
Register.
6. The
Notes are redeemable, in whole or in part, at the Company’s
option at any time at a redemption price equal to the Make-Whole
Price. The “Make-Whole Price” means an amount equal to
the greater of (1) 100% of the principal amount of the Notes being
redeemed, or (2) an amount equal to, as determined by an
Independent Investment Banker, the sum of the present value of the
remaining scheduled payments of principal and interest on the Notes
being redeemed, discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of twelve 30
day months) at the Adjusted Treasury Rate, plus, in each case,
accrued and unpaid interest thereon to the date of redemption.
Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the date of redemption to each registered
holder of the Notes to be redeemed. Unless the Company defaults in
payment of the redemption price, on and after the date of
redemption, interest will cease to accrue on the Notes or portion
thereof called for redemption.
“Adjusted Treasury Rate”
means, with respect to any redemption date, the rate per annum
equal to the semi-annual yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) that is the
same as the Comparable Treasury Price for such redemption date,
plus 50 basis points.
“Comparable Treasury
Issue” means the United States Treasury security selected by
an Independent Investment Banker that (1) has the maturity
comparable to the remaining term of the Notes to be redeemed and
(2) would be used, at the time of selection and in accordance with
customary financial practice, to price new issues of corporate debt
securities with a maturity comparable to the remaining term of the
Notes to be redeemed.
“Comparable Treasury
Price” means, with respect to any redemption date, (A) the
average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, (B) if the trustee obtains
fewer than three such Reference Treasury Dealer Quotations, the
average of all such Reference Treasury Quotations, or (C) if only
one Reference Treasury Dealer Quotation is received, such Reference
Treasury Dealer Quotation.
“Independent Investment
Banker” means one of the Reference Treasury Dealers appointed
by the trustee after consultation with the Company.
“Reference Treasury
Dealer” means (A) J.P. Morgan Securities Inc. or Banc of
America Securities LLC (or their respective affiliates which are
Primary Treasury Dealers) and their respective successors;
provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a
“Primary Treasury Dealer”), the Company shall
substitute therefor another Primary Treasury Dealer; and (B) any
other Primary Treasury Dealer selected by the Company.
“Reference Treasury Dealer
Quotation” means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m. (New York City time) on the third business day
preceding such redemption date.
7. The
Notes shall not be subject to the operation of any sinking fund or
an analogous provision.
8. There
shall be the following additions to the covenants of the Company
set forth in Article 10 of the Indenture with respect to the
Notes:
Limitation on Liens
. The Company covenants that, so
long as any of the Notes remain outstanding, it shall not, nor
shall it permit any Consolidated Subsidiary to, create or assume
any Indebtedness for money borrowed which is secured by a pledge,
mortgage, lien, charge, encumbrance or security interest
(“liens”) of or upon any assets, whether now owned or
hereafter acquired, of the Company or any such Consolidated
Subsidiary without equally and ratably securing the Notes by a lien
ranking ratably with and equal to (or at the option of the Company,
senior to) such secured Indebtedness for as long as such
Indebtedness remains outstanding and is so secured, except that the
foregoing restriction shall not apply to (a) liens on any
assets of any corporation or other business entity existing at the
time such Person becomes a Consolidated Subsidiary; (b) liens on
any assets (including, without limitation, property, shares of
stock or indebtedness) existing at the time of acquisition of such
assets by the Company or a Consolidated Subsidiary, or liens to
secure the payment of all or any part of the purchase price of such
assets upon the acquisition of such assets by the Company or a
Consolidated Subsidiary or to secure any indebtedness incurred or
guaranteed by the Company or a Consolidated Subsidiary prior to, at
the time of, or within 360 days after such acquisition (or in
the case of real property, the completion of construction
(including any improvements on an existing asset) or commencement
of full operation of such, property, whichever is later), which
indebtedness is incurred or guaranteed for the purpose of financing
all or any part of the purchase price thereof or, in the case of
real property, construction or improvements thereon; provided,
however, that in the case of any such acquisition, construction or
improvement, the lien shall not apply to any assets theretofore
owned by the Company or a Consolidated Subsidiary, other than, in
the case of any such construction or improvement, any real property
on which the property so
constructed, or the improvement, is
located; (c) liens on any assets securing indebtedness owed by
any Consolidated Subsidiary to the Company or another wholly owned
Subsidiary; (d) liens existing on the date of initial issuance of
the Notes; (e) liens on any assets of a corporation or other
business entity existing at the time such Person is merged into or
consolidated with the Company or a Subsidiary or at the time of a
purchase, lease or other acquisition of the assets of such Person
as an entirety or substantially as an entirety by the Company or a
Subsidiary; (f) liens on any assets of the Company or a
Consolidated Subsidiary in favor of the United States of America or
any state thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any state
thereof, or in favor of any other country, or any political
subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any
indebtedness incurred or guaranteed for the purpose of financing
all or any part of the purchase price (or, in the case of real
property, the cost of construction) of the assets subject to such
liens (including, but not limited to, liens incurred in connection
with pollution control, industrial revenue or similar financing);
(g) any extension, renewal or replacement or successive
extensions, renewals or replacements, in whole or in part, of any
lien referred to in the foregoing clauses (a) to (f),
inclusive, including the refinancing thereof without increase of
the principal of the indebtedness secured by such lien (except to
the extent of any fees or costs associated with any such extension,
renewal or replacement); (h) liens imposed by law, such as
mechanics’, workmen’s, repairmen’s,
materialmen’s, carriers’, warehousemen’s,
vendors’ or other similar liens arising in the ordinary
course of business, or governmental (federal, state or municipal)
liens arising out of contracts for the sale of products or services
by the Company or any Consolidated Subsidiary, or deposits or
pledges to obtain the release of any of the foregoing liens; (i)
pledges, liens or deposits under worker’s compensation laws
or similar legislation and liens or judgments thereunder which are
not currently dischargeable, or in connection with bids, tenders,
contracts (other than for the payment of money) or leases to which
the Company or any Consolidated Subsidiary is a party, or to secure
public or statutory obligations of the Company or any Consolidated
Subsidiary, or in connection with obtaining or maintaining
self-insurance or to obtain the benefits of any law, regulation or
arrangement pertaining to unemployment insurance, old age pensions,
social security or similar matters, or to secure surety,
performance, appeal or customs bonds to which the Company or any
Consolidated Subsidiary is a party, or in litigation or other
proceedings such as, but not limited to, interpleader proceedings,
and other similar pledges, liens or deposits made or incurred in
the ordinary course of business; (j) liens created by or
resulting from any litigation or other proceeding which is being
contested in good faith by appropriate proceedings, including liens
arising out of judgments or awards against the Company or any
Consolidated Subsidiary with respect to which the Company or such
Consolidated Subsidiary is in good faith prosecuting an appeal or
proceedings for review or for which the time to make an appeal has
not yet expired; or final unappealable judgment liens which are
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