EXHIBIT 4.3
FIRST SUPPLEMENTAL INDENTURE
----------------------------
FIRST SUPPLEMENTAL INDENTURE, dated as of February 26, 1998,
by and among NORTH ATLANTIC TRADING COMPANY, INC., a Delaware corporation f/k/a
North Atlantic Trading Acquisition Company, Inc. (the "Company") as issuer,
NATIONAL TOBACCO COMPANY, L.P., a Delaware limited partnership ("National
Tobacco"), NORTH ATLANTIC OPERATING COMPANY, INC., a Delaware corporation
("NAOC"), NATIONAL TOBACCO FINANCE CORPORATION, a Delaware corporation (together
with National Tobacco and NAOC, the "Initial Guarantors"), INTERNATIONAL FLAVORS
AND TECHNOLOGY, INC., a Delaware corporation, as additional guarantor (the
"Additional Guarantor"), and UNITED STATES TRUST COMPANY OF NEW YORK, a banking
corporation organized under the laws of the State of New York, as trustee (the
"Trustee"). All capitalized terms used herein and not otherwise defined shall
have the respective meanings provided such terms in the Indenture referred to
below.
W I T N E S S E T H
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WHEREAS, the Company, the Initial Guarantors and the Trustee
are parties to an Indenture, dated as of June 25, 1997 (the "Indenture");
WHEREAS, Section 9.01(a) of the Indenture permits the Company
and the Trustee to amend and supplement the Indenture or the Securities without
the consent of any Securityholder to cure an inconsistency or to add guarantees
with respect to the Securities;
WHEREAS, the Initial Guarantors and the Additional Guarantor
desire to amend the Indenture pursuant to Section 9.01(a) to cure an
inconsistency therein;
WHEREAS, the Additional Guarantor has become a direct or
indirect Subsidiary of the Company;
WHEREAS, the Additional Guarantor will receive certain
benefits through becoming, and wishes to become, a Guarantor for all purposes
under the Indenture and to unconditionally guarantee the obligations of the
Company under the Securities and the Indenture on the terms set forth under
Article Ten of the Indenture;
WHEREAS, the Company, the Initial Guarantors and the
Additional Guarantor have requested the Trustee to execute this First
Supplemental Indenture in connection with the foregoing.
NOW, THEREFORE, it is agreed:
1. Section 3.07(b) of the Indenture and Sections 5(b) of Exhibits A and
B to the Indenture are hereby amended by deleting the first sentence thereof and
replacing it in its entirety with the following:
At any time, or from time to time, on or prior to June 15,
2000, the Company may, at its option, redeem up to 35% of the
Securities with the Net Cash Proceeds of one or more Equity
Offerings by the Company so long as there is a Public Market
at the time of such redemption at a redemption price equal to
111.0% of the principal amount thereof, plus accrued and
unpaid interest thereon, if any, to the date of redemption;
provided, however, that after any such redemption the
aggregate principal amount of the Securities outstanding must
equal at least $100 million.
2. Exhibits A and B to the Indenture are hereby further amended by
adding at the end of the Form of Notation on the Security relating to the
Subsidiary Guarantee the name of the Additional Guarantor and a signature line
therefor.
3. The Additional Guarantor hereby jointly and severally with the
Initial Guarantors irrevocably and unconditionally guarantees, as a primary
obligor and not a surety, to each Securityholder of a Security previously, now
or hereafter authenticated and delivered by the Trustee and to the Trustee and
its successors and assigns, irrespective of the validity and enforceability of
the Indenture, the Securities or the Obligations of the Company thereunder or
under the Indenture, (a) the due and punctual payment of the principal, premium,
if any, and interest on the Securities, whether at Stated Maturity, Interest
Payment Date or otherwise, or by acceleration, call for redemption or otherwise,
(b) the due and punctual payment of interest (including post-petition interest
in any proceeding under any Bankruptcy Law whether or not an allowed claim in
such proceeding) on the overdue principal, premium, if any, and interest, if
any, on the Securities, to the extent lawful, (c) all other monetary Obligations
payable by the Company under the Indenture (including under Section 7.07 to the
Indenture) and the Securities, when and as the same shall become due and
payable, whether by acceleration thereof, call for redemption or otherwise
(including
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amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code), all in accordance with the terms of any
such Security and the Indenture (including the limitations set forth in Section
10.04 thereof) and (d) in case of any extension of time of payment or renewal of
any Securities or any of such other Obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at Stated Maturity, Interest Payment Date or otherwise, or
by acceleration, call for redemption or otherwise.
The Additional Guarantor hereby acknowledges and agrees that the
Additional Guarantor is subject to the provisions (including, without
limitation, the representations and warranties in Article 10 and Article 11) of
the Indenture as a Guarantor.
4. Without limiting the immediately preceding paragraph 3, each Initial
Guarantor hereby agrees that, for all purposes of the Indenture, each Initial
Guarantor, by its execution of this First Supplemental Indenture, shall remain a
Guarantor under the Indenture, in accordance with the terms and conditions set
forth in the Indenture and agrees to be bound by such terms and conditions.
5. This First Supplemental Indenture is limited as specified and shall
not constitute a modification, acceptance or waiver of any other provision of
the Indenture.
6. This First Supplemental Indenture may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
7. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE.
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IN WITNESS WHEREOF, each of the parties hereto have caused this First
Supplemental Indenture to be duly executed and delivered as of the date first
above written.
NORTH ATLANTIC TRADING
COMPANY, INC. f/k/a NORTH
ATLANTIC TRADING ACQUISITION
COMPANY, INC.
By: /s/ Xxxxxxx X. Xxx
------------------------
Xxxxxxx X. Xxx
Executive Vice President
NATIONAL TOBACCO COMPANY,
L.P.
By: /s/ Xxxxxxx X. Xxx
------------------------
Xxxxxxx X. Xxx
Executive Vice President
NORTH ATLANTIC OPERATING
COMPANY, INC.
By: /s/ Xxxxxxx X. Xxx
------------------------
Xxxxxxx X. Xxx
Executive Vice President
NATIONAL TOBACCO FINANCE
CORPORATION
By: /s/ Xxxxxxx X. Xxx
------------------------
Xxxxxxx X. Xxx
Executive Vice President
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INTERNATIONAL FLAVORS AND
TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxx
-----------------------------
Xxxxxxx X. Xxx
Executive Vice President
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By: /s/ Xxxxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxxxx X. Xxxxxxx
Assistant Vice President
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