EXHIBIT 4.3
OFFICE DEPOT, INC.
SUPPLEMENTAL INDENTURE NO. 1
6.250% Senior Notes due August 15, 2013
THIS SUPPLEMENTAL INDENTURE NO. 1, dated as of August 11, 2003 (this
"Supplemental Indenture"), between OFFICE DEPOT, INC., a Delaware corporation
(the "Company"), and SUNTRUST BANK, a Florida banking corporation, as trustee
(the "Trustee").
RECITALS OF THE COMPANY:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of August 11, 2003 (the "Indenture"), providing
for the issuance from time to time of one or more Series of Securities;
WHEREAS, Article Eight of the Indenture provides for various matters
with respect to any Series of Securities issued under the Indenture to be
established in an indenture supplemental to the Indenture;
WHEREAS, Section 8.1(e) of the Indenture provides that the Company and
the Trustee may enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any Series as permitted by Sections
2.1 and 2.3 of the Indenture; and
WHEREAS, all the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the issuance of the Series
of Securities provided for herein, the Company and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective Holders of
the Securities of such Series as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1 RELATION TO INDENTURE. This Supplemental Indenture
constitutes an integral part of the Indenture.
SECTION 1.2 DEFINITIONS. For all purposes of this Supplemental
Indenture, the following terms shall have the respective meanings set forth in
this Section.
"Additional Interest" shall have the meaning set forth in the
form of the Securities included as Exhibit A hereto.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Security or beneficial
interest therein, the rules and procedures of the Depositary for such
Global Security, Euroclear and Clearstream, in each case to the extent
applicable to such transaction and as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme.
"Definitive Security" means a certificated Initial Security or
Exchange Security (bearing the Restricted Securities Legend if the
transfer of such Security is restricted by applicable law) that does
not include the Global Securities Legend.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System.
"Exchange and Registration Rights Agreement" means the
Exchange and Registration Rights Agreement dated August 11, 2003, among
the Company and the Initial Purchasers.
"Exchange Securities" means the Securities of the Company
issued in exchange for Initial Securities pursuant to the Indenture and
this Supplemental Indenture in connection with the Registered Exchange
Offer.
"Global Securities Legend" means the legend set forth under
that caption in Exhibit A to this Supplemental Indenture.
"Initial Purchasers" means Citigroup Global Markets Inc. and
Goldman, Sachs & Co. and the other initial purchasers listed on
Schedule I to the Purchase Agreement.
"Initial Securities" means the Rule 144A Securities and the
Regulation S Securities.
"Participant" means members of, or participants in, the
Depositary.
"Private Exchange" means an offer by the Company, pursuant to
the Exchange and Registration Rights Agreement, to issue and deliver to
certain purchasers, in exchange for the Initial Securities held by such
purchasers as part of their initial distribution, a like aggregate
principal amount of Private Exchange Securities.
"Private Exchange Securities" means the Securities of the
Company issued in exchange for Initial Securities pursuant to the
Indenture and this Supplemental Indenture in connection with the
Private Exchange pursuant to the Exchange and Registration Rights
Agreement.
"Purchase Agreement" means the Purchase Agreement dated August
6, 2003, among the Company and the Initial Purchasers.
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"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means the offer by the Company,
pursuant to the Exchange and Registration Rights Agreement, to certain
Holders of Initial Securities, to issue and deliver to such Holders, in
exchange for their Initial Securities, a like aggregate principal
amount of Exchange Securities registered under the Securities Act.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered
and sold outside the United States in reliance on Regulation S.
"Restricted Period" with respect to any Securities means the
period of 40 consecutive days beginning on and including the later of
(i) the day on which such Securities are first offered to persons other
than distributors (as defined in Regulation S under the Securities Act)
in reliance on Regulation S and (ii) the Original Issue Date with
respect to such Securities.
"Restricted Securities Legend" means the legend set forth in
Section 2.6(e)(i) herein.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered
and sold to QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities" means the 6.250% Senior Notes due August 15,
2013.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depositary) or any successor
person thereto, who will initially be the Trustee.
"Shelf Registration Statement" means a registration statement
filed by the Company in connection with the offer and sale of the
Initial Securities or Private Exchange Securities pursuant to Section 3
of the Exchange and Registration Rights Agreement.
"Transfer Restricted Securities" means Definitive Securities
and any other Securities that bear or are required to bear the
Restricted Securities Legend.
SECTION 1.3 AMENDMENT TO SECTION 1.1 OF THE INDENTURE. For the sole
benefit of the Holders of the Securities, Section 1.1 of the Indenture shall be
amended by deleting the definition of "interest" and replacing such definition
with the following definition:
"interest" includes Additional Interest.
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SECTION 1.4 RULES OF CONSTRUCTION. For all purposes of this
Supplemental Indenture:
(a) capitalized terms used herein without definition shall
have the meanings specified in the Indenture;
(b) all references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections
of this Supplemental Indenture;
(c) the terms "herein", "hereof', "hereunder" and other words
of similar import refer to this Supplemental Indenture; and
(d) in the event of a conflict with the definition of terms in
the Indenture, the definitions in this Supplemental Indenture shall
control.
ARTICLE TWO
THE SECURITIES
SECTION 2.1 TITLE OF THE SECURITIES. There shall be a Series of
Securities designated the 6.250% Senior Notes due August 15, 2013 (the
"Securities").
SECTION 2.2 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT. The Securities
will be initially issued in an aggregate principal amount of $400,000,000;
provided that the Company may from time to time, without giving notice to or
seeking the consent of the Holders of the Securities, issue securities having
the same ranking and the same interest rate, maturity and other terms as the
Securities and any additional securities having such similar terms, together
with the applicable Securities, will constitute a single Series of Securities
under the Indenture.
SECTION 2.3 FORM AND DATING.
(a) GENERAL. The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Securities may have notations, legends or endorsements required by law, stock
exchange rules or usage. Each Security shall be dated the date of its
authentication. The Securities shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Supplemental Indenture, and the
Company and the Trustee, by their execution and delivery of this Supplemental
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Security conflicts with the express
provisions of this Supplemental Indenture, the provisions of this Supplemental
Indenture shall govern and be controlling.
The Initial Securities issued on the date hereof will be (i) offered
and sold by the Company pursuant to the Purchase Agreement and (ii) resold
initially only to (A) QIBs in reliance on Rule 144A and (B) Persons other than
U.S. Persons (as defined in Regulation S) in
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reliance on Regulation S. Such Initial Securities may thereafter be transferred
to, among others, QIBs and purchasers in reliance on Regulation S.
The Company hereby designates The Depository Trust Company as the
initial Depositary for the Global Securities.
(b) GLOBAL SECURITIES. The Rule 144A Securities shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the "Rule 144A Global Security") and the
Regulation S Securities shall be issued initially in the form of one or more
global Securities (collectively, the "Regulation S Global Security"), in each
case without interest coupons and bearing the Global Securities Legend and
Restricted Securities Legend, which shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Securities Custodian,
and registered in the name of the Depositary or a nominee of the Depositary,
duly executed by the Company and authenticated by the Trustee as provided in the
Indenture. Beneficial ownership interests in the Regulation S Global Security
shall not be exchangeable for interests in the Rule 144A Global Security or any
other Security without a Restricted Securities Legend until the expiration of
the Restricted Period. The Rule 144A Global Security and the Regulation S Global
Security are each referred to herein as a "Global Security" and are collectively
referred to herein as "Global Securities." The aggregate principal amount of the
Global Securities may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary or its nominee as
hereinafter provided.
(c) BOOK-ENTRY PROVISIONS. This Section 2.3(c) shall apply only to a
Global Security deposited with or on behalf of the Depositary. The Company shall
execute and the Trustee shall, in accordance with this Section 2.3(c) and
pursuant to an order of the Company, authenticate and deliver initially one or
more Global Securities that (a) shall be registered in the name of the
Depositary for such Global Security or Global Securities or the nominee of such
Depositary and (b) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions or held by the Trustee as Securities
Custodian.
Participants shall have no rights under the Indenture with respect to
any Global Security held on their behalf by the Depositary or by the Trustee as
Securities Custodian or under such Global Security, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Participants, the operation of
customary practices of such Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(d) DEFINITIVE SECURITIES. Except as provided in Section 2.7, owners of
beneficial interests in Global Securities will not be entitled to receive
physical delivery of certificated Securities.
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SECTION 2.6 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When Definitive
Securities are presented to the Registrar with a request:
(i) to register the transfer of such Definitive Securities; or
(ii) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations, the Registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such
transaction are met; provided, however, that the Definitive Securities
surrendered for transfer or exchange:
(A) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory
to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing; and
(B) are accompanied by the following additional
information and documents, as applicable:
(x) if such Definitive Securities are being
delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect (in the form set forth on the reverse side of
the Initial Security); or
(y) if such Definitive Securities are being
transferred to the Company, a certification to that
effect (in the form set forth on the reverse side of
the Initial Security); or
(C) if such Definitive Securities are being
transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or in
reliance upon another exemption from the registration
requirements of the Securities Act, (i) a certification to
that effect (in the form set forth on the reverse side of the
Initial Security) and (ii) if the Company so requests, an
opinion of counsel or other evidence reasonably satisfactory
to it as to the compliance with the restrictions set forth in
the legend set forth in Section 2.6(e)(i).
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A BENEFICIAL
INTEREST IN A GLOBAL SECURITY. A Definitive Security may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Company and the Registrar, together with:
(i) certification (in the form set forth on the reverse side
of the Initial Security) that such Definitive Security is being
transferred (A) to a QIB in accordance with Rule 144A or (B) outside
the United States in an offshore transaction within the meaning of
Regulation S and in compliance with Rule 904 under the Securities Act;
and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such
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Global Security to reflect an increase in the aggregate principal
amount of the Securities represented by the Global Security, such
instructions to contain information regarding the Depositary account to
be credited with such increase, then the Trustee shall cancel such
Definitive Security and cause, or direct the Securities Custodian to
cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global
Security to be increased by the aggregate principal amount of the
Definitive Security to be exchanged and shall credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the Global Security equal to the principal
amount of the Definitive Security so canceled. If no Global Securities
are then outstanding and the Global Security has not been previously
exchanged for certificated securities pursuant to Section 2.7, the
Company shall issue and the Trustee shall authenticate, upon written
order of the Company in the form of an Officers' Certificate, a new
Global Security in the appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
(i) The transfer and exchange of Global Securities or
beneficial interests therein shall be effected through the Depositary,
in accordance with this Supplemental Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures
of the Depositary therefor. A transferor of a beneficial interest in a
Global Security shall deliver a written order given in accordance with
the Depositary's procedures containing information regarding the
participant account of the Depositary to be credited with a beneficial
interest in such Global Security or another Global Security and such
account shall be credited in accordance with such order with a
beneficial interest in the applicable Global Security and the account
of the Person making the transfer shall be debited by an amount equal
to the beneficial interest in the Global Security being transferred.
Transfers by an owner of a beneficial interest in a Rule 144A Global
Security to a transferee who takes delivery of such interest through a
Regulation S Global Security, whether before or after the expiration of
the Restricted Period, shall be made only upon receipt by the Trustee
of a certification from the transferor to the effect that such transfer
is being made in accordance with Regulation S or (if available) Rule
144 under the Securities Act and that, if such transfer is being made
prior to the expiration of the Restricted Period, the interest
transferred shall be held immediately thereafter through Euroclear or
Clearstream.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another
Global Security, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Global Security
to which such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the
Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Security from
which such interest is being transferred.
(iii) Notwithstanding any other provisions of this
Supplemental Indenture (other than the provisions set forth in Section
2.7), a Global Security may not be transferred as a whole except by the
Depositary to a nominee of the Depositary or by a
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nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.7 prior to the consummation
of the Registered Exchange Offer or the effectiveness of the Shelf
Registration Statement with respect to such Securities, such Securities
may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.6
(including the certification requirements set forth on the reverse of
the Initial Securities intended to ensure that such transfers comply
with Rule 144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and such
other procedures as may from time to time be adopted by the Company.
(d) RESTRICTIONS ON TRANSFER OF REGULATION S GLOBAL SECURITY.
(i) Prior to the expiration of the Restricted Period,
interests in a Regulation S Global Security may only be held through
Euroclear or Clearstream. During the Restricted Period, beneficial
ownership interests in a Regulation S Global Security may only be sold,
pledged or transferred through Euroclear or Clearstream in accordance
with the Applicable Procedures and only (A) to the Company, (B) so long
as such security is eligible for resale pursuant to Rule 144A, to a
person whom the selling holder reasonably believes is a QIB that
purchases for its own account or for the account of a QIB to whom
notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, (C) in an offshore transaction in accordance
with Regulation S, (D) pursuant to an exemption from registration under
the Securities Act provided by Rule 144 (if applicable) under the
Securities Act or (E) pursuant to an effective registration statement
under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States. Prior to
the expiration of the Restricted Period, transfers by an owner of a
beneficial interest in a Regulation S Global Security to a transferee
who takes delivery of such interest through a Rule 144A Global Security
shall be made only in accordance with the Applicable Procedures and
upon receipt by the Trustee of a written certification from the
transferor of the beneficial interest in the form provided on the
reverse of the Initial Security to the effect that such transfer is
being made to a person whom the transferor reasonably believes is a QIB
within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A. Such written certification shall no longer
be required after the expiration of the Restricted Period.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in a Regulation S Global Security shall be
transferable in accordance with applicable law and the other terms of
the Indenture.
(e) LEGENDS FOR SECURITIES
(i) Except as permitted by the following paragraphs (ii),
(iii), (iv) or (vi), each Security certificate evidencing the Global
Securities and the Definitive Securities (and all Securities issued in
exchange therefor or in substitution thereof) shall bear a legend in
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substantially the following form (each defined term in the legend being
defined as such for purposes of the legend only):
Global Security Legend - [THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH EITHER THE COMPANY OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE RIGHT OF THE COMPANY AND THE TRUSTEE PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.]
Each Security evidencing a Global Security offered and sold to QIBs
pursuant to Rule 144A shall bear a legend in substantially the
following form
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
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Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted
Security that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer Restricted
Security if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Initial
Security).
(iii) After a transfer of any Initial Securities or Private
Exchange Securities during the period of the effectiveness of a Shelf
Registration Statement with respect to such Initial Securities or
Private Exchange Securities, as the case may be, all requirements
pertaining to the Restricted Securities Legend on such Initial
Securities or such Private Exchange Securities shall cease to apply and
the requirements that any such Initial Securities or such Private
Exchange Securities be issued in global form shall continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which Holders of such
Initial Securities are offered Exchange Securities in exchange for
their Initial Securities, all requirements pertaining to Initial
Securities that Initial Securities be issued in global form shall
continue to apply, and Exchange Securities in global form without the
Restricted Securities Legend shall be available to Holders that
exchange such Initial Securities in such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect
to the Initial Securities pursuant to which Holders of such Initial
Securities are offered Private Exchange Securities in exchange for
their Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities be issued in global form shall
continue to apply, and Private Exchange Securities in global form with
the Restricted Securities Legend shall be available to Holders that
exchange such Initial Securities in such Private Exchange.
(vi) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Security acquired pursuant to
Regulation S, all requirements that such Initial
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Security bear the Restricted Securities Legend shall cease to apply and
the requirements requiring any such Initial Security be issued in
global form shall continue to apply.
(f) CANCELLATION OR ADJUSTMENT OF GLOBAL SECURITY. At such time as all
beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancellation or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(g) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF SECURITIES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate, Definitive
Securities and Global Securities at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchange or transfer pursuant to Sections 8.5 or 12.3 of the
Indenture).
(iii) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent or
the Registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue,
and none of the Company, the Trustee, the Paying Agent or the Registrar
shall be affected by notice to the contrary.
(iv) The Company shall not be required to make and the
Registrar need not register transfers or exchanges of Securities
selected for redemption (except, in the case of Securities to be
redeemed in part, the portion thereof not to be redeemed) or any
Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of this Supplemental Indenture shall evidence the
same Debt and shall be entitled to the same benefits under the
Indenture as the Securities surrendered upon such transfer or exchange.
(h) NO OBLIGATION OF THE TRUSTEE.
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(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a
participant in the Depositary or any other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of
any notice (including any notice of redemption or repurchase) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Securities shall be given or made only
to the registered Holders (which shall be the Depositary or its nominee
in the case of a Global Security). The rights of beneficial owners in
any Global Security shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Supplemental Indenture or under applicable law with
respect to any transfer of any interest in any Security (including any
transfers between or among Depositary participants, members or
beneficial owners in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required
by, the terms of this Supplemental Indenture, and to examine the same
to determine substantial compliance as to form with the express
requirements hereof.
SECTION 2.7 DEFINITIVE SECURITIES.
(a) A Global Security deposited with the Depositary or with the Trustee
as Securities Custodian pursuant to Section 2.3 shall be transferred to the
beneficial owners thereof in the form of Definitive Securities in an aggregate
principal amount equal to the principal amount of such Global Security, in
exchange for such Global Security, only if such transfer complies with Section
2.6 and (i) the Company notifies the Trustee that the Depositary, Euroclear or
Clearstream is no longer willing or able to act as a depositary or clearing
system for the Securities or the Depositary or the Depositary ceases to be a
"clearing agency" registered under the Exchange Act, and a successor depositary
or clearing system is not appointed by the Company within 90 days of such notice
or cessation, (ii) the Company, in its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Securities under the
Indenture, or (iii) upon the occurrence and continuation of an Event of Default.
(b) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section 2.7 shall be surrendered by the Depositary to
the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate principal
amount of Definitive Securities of authorized denominations. Any portion of a
Global Security transferred pursuant to this Section 2.7 shall be executed,
authenticated and delivered only in denominations of $1,000 of principal amount
and any integral multiple thereof and registered in such names as the Depositary
shall direct. Any certificated Initial Security in the form of a
12
Definitive Security delivered in exchange for an interest in the Global Security
shall, except as otherwise provided by Section 2.6, bear the Restricted
Securities Legend.
(c) The registered Holder of a Global Security may grant proxies and
otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under the Indenture or the Securities.
(d) In the event of the occurrence of any of the events specified in
Section 2.7(a)(i), (ii) or (iii), the Company will promptly make available to
the Trustee a reasonable supply of Definitive Securities in fully registered
form without interest coupons.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 RATIFICATION. The Indenture, as supplemented and amended by
this Supplemental Indenture, is in all respects hereby adopted, ratified and
confirmed.
SECTION 3.2 CONFLICTS. In the event of a conflict with any term or
provision in the Indenture, the term or provision in this Supplemental Indenture
shall control.
SECTION 3.3 COUNTERPARTS. This Supplemental Indenture may be executed
in any number of counterparts, each of which when so executed shall be deemed an
original, and all such counterparts shall together constitute but one and the
same instrument.
SECTION 3.4 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE AND EACH
SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF.
[signature page follows]
13
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 1 to be duly executed as of the day and year first above written.
OFFICE DEPOT, INC.
By: /s/ CAROLYN CLARKE
-------------------------------------
Name: Carolyn Clarke
Title: Vice President and Treasurer
SUNTRUST BANK,
as Trustee
By: /s/ HOLLY LEE JESKE
-------------------------------------
Name: Holly Lee Jeske
Title: Vice President
14
EXHIBIT A -- Form of Note
OFFICE DEPOT, INC.
6.250% Senior Notes due August 15, 2013
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Company (as
defined below) or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
No. [____] U.S.$[_________]
CUSIP No.: [______]
ISIN No.: [______]
Common Code No.: [______]
Office Depot, Inc., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum set
forth above or such other principal sum on the Schedule attached hereto (which
shall not exceed U.S.$400,000,000) on August 15, 2013, and to pay interest
thereon from August 11, 2003 or from the most recent interest payment date to
which interest has been paid or duly provided for, semiannually on February 15
and August 15 in each year, commencing February 15, 2004, at the rate of 6.250%
per annum, until the principal hereof is paid or made available for payment;
provided, however, in the event (each such event in clauses (i) through (iii)
below, being referred to as a "Registration Default") that: (i) the Company is
permitted under the law and currently prevailing interpretations of the
Commission's staff to effect the Registered Exchange Offer and (A) the Exchange
Offer Registration Statement is not filed with the Commission on or prior to the
90th day following the Issue Date, (B) the Exchange Offer Registration Statement
is not declared effective on or prior to the 180th day following the Issue Date,
or (C) the Registered Exchange Offer is not consummated on or prior to the 210th
day following the Issue Date; (ii) in the event the Company is required to file
a Shelf Registration Statement and the Shelf Registration Statement (A) is not
filed with the Commission on or prior to the date specified in Section 3 of the
Exchange and Registration Rights Agreement, or (B) is not declared effective by
the Commission on or prior to the date specified in Section 3 of the Exchange
and Registration Rights Agreement; or (iii) after a Registration Statement is
declared effective, (A) such Registration Statement ceases to be effective prior
to the end of the Exchange Offer Registration Period or the Shelf Registration
Period, as applicable, or (B) such Registration Statement or the related
Prospectus ceases to be useable in connection with resales of the Securities
covered by such Registration Statement prior to the end of the Exchange Offer
Registration Period or the Shelf Registration Period, as
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applicable then, in the event of a Registration Default under clause (i) or (ii)
above, Additional Interest shall accrue on the Securities affected thereby over
and above the interest rate set forth in the title to the Securities from and
including the next day following each such Registration Default, in each case at
a rate equal to 0.25% per annum and, in the event of a Registration Default
under clause (iii) above, if the aggregate number of days in any consecutive
12-month period for which the Registration Statement shall not be usable exceeds
90 days in the aggregate, then Additional Interest shall accrue on the
Securities affected thereby over and above the interest rate set forth in the
title to the Securities from and including the next day following the 60th such
day at a rate equal to 0.25% per annum; PROVIDED, that the aggregate Additional
Interest will in no event exceed 0.25% per annum. Additional Interest
attributable to a Registration Default shall cease to accrue once such
Registration Default is cured.
The Company shall notify the Trustee within three Business Days after
the occurrence of a Registration Default, and Additional Interest shall be paid
by depositing with the Trustee, in trust for the benefit of the Holders entitled
to receive the Additional Interest, on or before the applicable semiannual
interest payment date, immediately available funds in sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each interest payment date to the record Holder entitled to receive the interest
payment to be paid on such date as set forth in the Indenture.
The interest (and Additional Interest, if any) so payable, and
punctually paid or duly provided for, on any interest payment date will, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the regular record date for such interest, which shall be the February 1 or
August 1 (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 will forthwith cease to be payable to the Holder on such regular
record date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
special record date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such special record date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
Payment of the principal of (and premium, if any) and interest (and
Additional Interest, if any) on this Security will be made at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or by wire transfer to an
account maintained by the Person entitled thereto as specified in the Security
Register, provided that such Person shall have given the Trustee written wire
instructions at least five Business Days prior to the applicable Interest
Payment Date.
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Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
[Signatures appear on next page]
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: August 11, 2003
OFFICE DEPOT, INC.
By:
------------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
SUNTRUST BANK,
as Trustee
By:
------------------------------------
Authorized Signatory
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[FORM OF REVERSE SIDE OF SECURITY]
6.250% Senior Notes due August 15, 2013
Section 1. INDENTURE
The Company issued the Securities under an Indenture, dated as of
August 11, 2003, between the Company and the Trustee, and Supplemental Indenture
No. 1 thereto, dated as of August 11, 2003 (collectively, the "Indenture"). The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act as in effect on
the date of the Indenture. Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all terms and provisions of the Indenture, and Securityholders are referred
to the Indenture and the Trust Indenture Act for a statement of such terms and
provisions.
The Securities are senior unsecured obligations of the Company
initially limited to $400,000,000 aggregate principal amount at any one time
outstanding. This Security is one of the Initial Securities referred to in the
Indenture. The Securities include the Initial Securities and any Exchange
Securities and Private Exchange Securities issued in exchange for Initial
Securities. The Initial Securities, the Exchange Securities and the Private
Exchange Securities are treated as a single class of securities under the
Indenture.
Section 2. REDEMPTION
The Securities may be redeemed, in whole or in part, at the option of
the Company at any time or from time to time. The redemption price for the
Securities to be redeemed on any redemption date will be equal to the greater of
the following amounts:
o 100% of the principal amount of the Securities being redeemed
on the redemption date; or
o the sum of the present values of the remaining scheduled
payments of principal of and interest on the Securities being
redeemed on that redemption date (not including any portion of
any payments of interest accrued to the redemption date)
discounted to the redemption date on a semiannual basis at the
Treasury Rate (as defined below), plus 30 basis points,
plus, in each case, accrued and unpaid interest on the notes to the redemption
date.
Notwithstanding the foregoing, installments of interest on Securities
that are due and payable on interest payment dates falling on or prior to a
redemption date will be payable on the interest payment date to the Holders as
of the close of business on the relevant record date. The redemption price will
be calculated on the basis of a 360-day year consisting of twelve 30-day months.
A-5
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable to the
remaining term of the notes.
"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, or (B) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Quotations, or (C) if only
one Reference Treasury Dealer Quotation is received, such Quotation.
"Reference Treasury Dealer" means (A) Citigroup Global Markets Inc. or
Goldman, Sachs & Co. (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 will substitute therefor
another Primary Treasury Dealer; and (B) any other Primary Treasury Dealer(s)
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.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
Section 3. SINKING FUND
The Securities are not subject to any sinking fund.
Section 4. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption or to transfer or exchange
any Securities for a period of 15 days prior to the mailing of a notice of
redemption of Securities to be redeemed.
Section 5. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the owner of
it for all purposes.
A-6
Section 6. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company
at its written request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
Section 7. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to redemption or maturity,
as the case may be.
Section 8. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
Section 9. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
Section 10. AUTHENTICATION
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
Section 11. GOVERNING LAW
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
A-7
Section 12. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
Section 13. HOLDERS' COMPLIANCE WITH THE EXCHANGE AND REGISTRATION
RIGHTS AGREEMENT
Each Holder of a Security, by acceptance hereof, acknowledges and
agrees to the provisions of the Exchange and Registration Rights Agreement,
including, without limitation, the obligations of the Holders with respect to a
registration and the indemnification of the Company to the extent provided
therein. In the event of a conflict between the terms of this Security and the
Exchange and Registration Rights Agreement, the terms of the Exchange and
Registration Rights Agreement shall control.
The Company will furnish to any Holder of Securities upon written
request and without charge to the Holder a copy of the Indenture which has in it
the text of this Security.
A-8
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____________ principal amount of
Securities held in (check applicable space) ___ book-entry or ___ definitive
form by _________________________ (the "Transferor").
The Transferor (check one box below):
has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above); or
has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by
this certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act of 1933, the undersigned confirms that such
Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [_] to the Company; or
(2) [_] pursuant to an effective registration statement under
the Securities Act of 1933; or
(3) [_] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(4) [_] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933;
or
(5) [_] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Prior to the expiration of the period referred to in Rule 144(k),
unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any Person other
than the registered holder thereof; provided, however, that if box
A-9
(3), (4) or (5) is checked, the Trustee may require, prior to registering any
such transfer of the Securities, such legal opinions, certifications and other
information satisfactory to the Company and the Trustee to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933.
-----------------------------------------
[INSERT NAME OF TRANSFEROR]
Dated: By:
------------------------ -------------------------------------
A-10
SCHEDULE OF EXCHANGES
The following exchanges of a part of this Book-Entry Security have been
made:
Principal Amount of this Signature of
Amount of decrease in Amount of increase in Book-Entry Security authorized signatory
Principal Amount of Principal Amount of following such decrease of Trustee or
Date of Exchange this Book-Entry Security this Book-Entry Security (or increase Security Custodian
- ---------------- ------------------------ ------------------------ ------------------------ --------------------
A-11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _____________________________________agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Date: ______________________ Your Signature: ______________________________
- ----------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
A-12