EXHIBIT 4.3
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EXECUTION VERSION
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NORTH ATLANTIC TRADING COMPANY, INC.,
as Issuer,
NORTH ATLANTIC HOLDING COMPANY, INC.
XXXX XXXXXX & SONS, INC.
NATIONAL TOBACCO COMPANY, L.P.
NATIONAL TOBACCO FINANCE CORPORATION
NORTH ATLANTIC CIGARETTE COMPANY, INC.
NORTH ATLANTIC OPERATING COMPANY, INC.
RBJ SALES, INC. and
XXXXXX, INC.,
as Guarantors,
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
10% SENIOR SECURED NOTES DUE 2012
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INDENTURE
Dated as of May 9, 2007
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TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
1
Section 1.01. Definitions..........................................1
Section 1.02. Other Definitions...................................21
Section 1.03. Incorporation by Reference of Trust
Indenture Act.......................................21
Section 1.04. Rules of Construction...............................22
ARTICLE 2
THE SECURITIES
22
Section 2.01. Form and Dating.....................................22
Section 2.02. Execution and Authentication........................23
Section 2.03. Registrar and Paying Agent..........................24
Section 2.04. Paying Agent to Hold Money in Trust.................24
Section 2.05. Holder Lists........................................24
Section 2.06. Transfer and Exchange...............................25
Section 2.07. Replacement Notes...................................35
Section 2.08. Outstanding Notes...................................35
Section 2.09. Treasury Notes......................................35
Section 2.10. Temporary Notes.....................................35
Section 2.11. Cancellation........................................36
Section 2.12. Defaulted Interest..................................36
Section 2.13. CUSIP Number........................................36
Section 2.14. Deposit of Moneys...................................36
Section 2.15. Persons Deemed Owners...............................36
Section 2.16. Record Date.........................................37
ARTICLE 3
REDEMPTION
37
Section 3.01. Notices to Trustee..................................37
Section 3.02. Selection of Notes to Be Redeemed...................37
Section 3.03. Notice of Redemption................................37
Section 3.04. Effect of Notice of Redemption......................38
Section 3.05. Deposit of Redemption Price.........................38
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Section 3.06. Notes Redeemed in Part..............................39
Section 3.07. Optional Redemption.................................39
Section 3.08. Mandatory Redemption................................39
Section 3.09. Offer to Purchase by Application of Excess
Proceeds............................................39
ARTICLE 4
COVENANTS
41
Section 4.01. Payment of Notes....................................41
Section 4.02. Maintenance of Office or Agency.....................41
Section 4.03. Reports.............................................42
Section 4.04. Compliance Certificates.............................43
Section 4.05. Taxes...............................................44
Section 4.06. Stay, Extension and Usury Laws......................44
Section 4.07. Limitation on Restricted Payments...................44
Section 4.08. Limitation on Distributions from Restricted
Subsidiaries........................................47
Section 4.09. Limitation on Incurrence of Indebtedness............49
Section 4.10. Limitation on Asset Dispositions....................50
Section 4.11. Limitation on Transactions with Affiliates..........52
Section 4.12. Limitation on Liens.................................53
Section 4.13. Corporate Existence.................................53
Section 4.14. Change of Control...................................53
Section 4.15. Payments for Consent................................54
ARTICLE 5
SUCCESSORS
55
Section 5.01. Limitations on Merger, Consolidation or Sale
of Assets...........................................55
Section 5.02. Successor Company Substituted.......................56
ARTICLE 6
DEFAULTS AND REMEDIES
56
Section 6.01. Events of Default...................................56
Section 6.02. Acceleration........................................57
Section 6.03. Other Remedies......................................58
Section 6.04. Waiver of Past Defaults.............................58
Section 6.05. Control by Majority.................................58
Section 6.06. Limitation on Suits.................................58
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Section 6.07. Rights of Holders to Receive Payment................59
Section 6.08. Collection Suit by Trustee or Collateral
Agent...............................................59
Section 6.09. Trustee May File Proofs of Claim....................59
Section 6.10. Priorities..........................................60
Section 6.11. Undertaking for Costs...............................60
ARTICLE 7
TRUSTEE
61
Section 7.01. Duties of Trustee...................................61
Section 7.02. Rights of Trustee...................................62
Section 7.03. Individual Rights of Trustee........................63
Section 7.04. Trustee's Disclaimer................................63
Section 7.05. Notice of Defaults..................................64
Section 7.06. Reports by Trustee to Holders.......................64
Section 7.07. Compensation and Indemnity..........................64
Section 7.08. Replacement of Trustee..............................65
Section 7.09. Successor Trustee by Merger, Etc....................66
Section 7.10. Eligibility; Disqualification.......................66
Section 7.11. Preferential Collection of Claims Against
the Company.........................................67
ARTICLE 8
DISCHARGE OF INDENTURE
67
Section 8.01. Discharge of Liability on Securities;
Defeasance..........................................67
Section 8.02. Conditions to Defeasance............................68
Section 8.03. Acknowledgment of Discharge by the Trustee..........69
Section 8.04. Application of Trust Money..........................69
Section 8.05. Repayment to the Company............................69
Section 8.06. Indemnity for Government Obligations................70
Section 8.07. Reinstatement.......................................70
ARTICLE 9
AMENDMENTS
70
Section 9.01. Without Consent of Holders..........................70
Section 9.02. With Consent of Holders.............................71
Section 9.03. Compliance with Trust Indenture Act.................72
Section 9.04. Revocation and Effect of Consents...................72
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Section 9.05. Notation on or Exchange of Securities...............73
Section 9.06. Trustee to Sign Amendments, Etc.....................73
ARTICLE 10
GUARANTEE OF SECURITIES
73
Section 10.01. Note Guarantee......................................73
Section 10.02. Execution and Delivery of Note Guarantee............74
Section 10.03. Note Guarantee Unconditional, etc...................74
Section 10.04. Limitation of Guarantor's Liability.................75
Section 10.05. Contribution........................................75
Section 10.06. Release.............................................76
Section 10.07. Additional Guarantors...............................76
Section 10.08. Successors and Assigns..............................76
ARTICLE 11
MISCELLANEOUS
77
Section 11.01. Trust Indenture Act Controls........................77
Section 11.02. Notices.............................................77
Section 11.03. Communication by Holders with Other Holders.........78
Section 11.04. Certificate and Opinion as to Conditions
Precedent...........................................78
Section 11.05. Statements Required in Certificate or Opinion.......78
Section 11.06. Rules by Trustee and Agents.........................78
Section 11.07. Legal Holidays......................................79
Section 11.08. No Recourse Against Others..........................79
Section 11.09. Duplicate Originals.................................79
Section 11.10. Governing Law.......................................79
Section 11.11. No Adverse Interpretation of Other Agreements.......79
Section 11.12. Successors..........................................79
Section 11.13. Severability........................................79
Section 11.14. Counterpart Originals...............................79
Section 11.15. Table of Contents, Headings, Etc....................80
ARTICLE 12
SECURITY
80
Section 12.01. Grant of Security Interest..........................80
Section 12.02. Release of Collateral...............................80
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Section 12.03. Specified Releases of Collateral....................81
Section 12.04. Release upon Satisfaction or Defeasance of
all Outstanding Obligations.........................81
Section 12.05. Form and Sufficiency of Release.....................82
Section 12.06. Purchaser Protected.................................82
Section 12.07. Authorization of Actions to be Taken by the
Collateral Agent Under the Collateral
Agreements..........................................82
Section 12.08. Authorization of Receipt of Funds by the
Trustee Under the Collateral Agreements.............83
Section 12.09. Intercreditor Agreement.............................83
EXHIBITS
EXHIBIT A -- Form of Note and Note Guarantee
EXHIBIT B -- Form of Certificate of Transfer
EXHIBIT C -- Form of Certificate of Exchange
EXHIBIT D -- Form of Certificate of Acquiring Institutional
Accredited Investor
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INDENTURE, dated as of May 9, 2007, among North Atlantic Trading
Company, Inc., a Delaware corporation (the "Company"), the Guarantors listed on
the signature pages hereto and U.S. Bank National Association, a national
banking association, as Trustee (as defined).
The Company has duly authorized the creation of an issue of 10%
Senior Secured Notes due 2012 and, to provide therefor, the Company and the
Guarantors have duly authorized the execution and delivery of this Indenture.
All things necessary to make the Notes when duly issued and executed by the
Company, and authenticated and delivered hereunder, the valid obligations of the
Company and the Guarantors, and to make this Indenture a valid and binding
agreement of the Company and the Guarantors, have been done.
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness Incurred and outstanding
on the date on which such Restricted Subsidiary was acquired by the Company
(other than Indebtedness Incurred in anticipation of, or to provide all or any
portion of the funds or credit support utilized to consummate the transaction or
series of related transactions pursuant to which such Restricted Subsidiary
became a Subsidiary or was otherwise acquired by the Company).
"Additional Assets" means (1) any property or assets (other than
Indebtedness and Capital Stock) to be used in the business of the Company or any
Restricted Subsidiary; (2) the Capital Stock of a Person that becomes a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or a Restricted Subsidiary of the Company; or (3) Permitted
Investments of the type and in the amounts described in clause (9) of the
definition thereof.
"Additional Notes" means additional Notes (other than the Initial
Notes) issued under this Indenture in accordance with Section 2.02 and 4.09.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall
mean the lesser of the amount by which (x) the fair value of the property of
such Subsidiary Guarantor exceeds the total amount of liabilities, including,
without limitation, the probable liability of such Guarantor with respect to its
contingent liabilities (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), but excluding liabilities under
the Subsidiary Guarantee, of such Subsidiary Guarantor at such date and (y) the
present fair salable value of the assets of such Subsidiary Guarantor at such
date exceeds the amount that will be required to pay the probable liability of
such Subsidiary Guarantor on its debts (after giving effect to all other fixed
and contingent liabilities incurred or assumed on such date and after giving
effect to any collection from any Subsidiary by such Subsidiary Guarantor in
respect of the obligations of such Subsidiary under the Subsidiary Guarantee),
excluding debt in respect of the Subsidiary Guarantee, as they become absolute
and matured.
"Affiliate" of any specified person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
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management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Premium" means, with respect to any Note on any
applicable redemption date, the greater of:
(1) 1.0% of the then outstanding principal amount of the Note; and
(2) the excess of:
(a) the present value at such redemption date of (i) the
redemption price of the Notes at March 1, 2008 as set forth in
Section 3.07 plus (ii) all required interest payments due on such
Note through March 1, 2008 (excluding accrued but unpaid interest),
computed using a discount rate equal to the Treasury Rate as of such
redemption date plus 50 basis points; over
(b) the then outstanding principal amount of the Note.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Asset Disposition" means any sale, lease, transfer, issuance or
other disposition (or series of related sales, leases, transfers, issuances or
dispositions that are part of a common plan) of Capital Stock of a Restricted
Subsidiary (other than directors' qualifying shares) or of any other property or
other assets (each referred to for the purposes of this definition as a
"disposition") by the Company or any of its Restricted Subsidiaries (including
any disposition by means of a merger, consolidation or similar transaction)
other than:
(1) a disposition by a Restricted Subsidiary to the Company or by
the Company or a Restricted Subsidiary to another Restricted Subsidiary;
(2) a disposition of inventory or other property in the ordinary
course of business;
(3) a disposition of obsolete or worn out equipment or any other
property (including inventory) that, in the reasonable judgment of the
Company, is obsolete or worn out and is no longer useful in the conduct of
the business of the Company and its Restricted Subsidiaries;
(4) dispositions of property for net proceeds which, when taken
collectively with the net proceeds of any other such dispositions under
this clause (4) that were consummated since the beginning of the calendar
year in which such disposition is consummated, do not exceed $2.0 million;
and
(5) for purposes of Section 4.10 only, transactions permitted
under Section 5.01.
Notwithstanding anything to the contrary contained above, a
Restricted Payment made in compliance with Section 4.07 shall not constitute an
Asset Disposition except for purposes of determinations of the Consolidated
Leverage Ratio.
2
"Attributable Indebtedness" in respect of a Sale/Leaseback
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Notes, compounded annually) of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with respect
to any Indebtedness or Preferred Stock, the quotient obtained by dividing (1)
the sum of the products of (a) the number of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to Preferred
Stock and (b) the amount of such payment by (2) the sum of all such payments.
"Bankruptcy Code" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code of
1978, as amended.
"Bankruptcy Law" means the Bankruptcy Code and any other federal,
state, or foreign law for the relief of creditors.
"Board of Directors" means, with respect to any Person, the Board of
Directors (or equivalent governing body) of such Person or any committee of the
Board of Directors (or equivalent governing body) of such Person duly
authorized, with respect to any particular matter, to exercise the power of the
Board of Directors (or equivalent governing body) of such Person.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means a day that is not a Legal Holiday.
"Cap Amount" means the sum of (a) $93,500,000, minus (b) the
aggregate of all net cash proceeds of Asset Dispositions applied to repay or
prepay (i) any term loan under the First Lien Credit Agreement and (ii) any
revolving loans (including swing line loans), to the extent, in the case of any
prepayments or repayments of such revolving loans, accompanied by a
corresponding permanent reduction in the applicable commitment amount under the
First Lien Credit Agreement.
"Capital Stock" of any Person means any and all shares, partnership
or other equity interests, rights to purchase, warrants, options, participations
or other equivalents of or interests in (however designated) equity of such
Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP, and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date such lease may be terminated without penalty.
"Cash Equivalents" means:
(1) securities issued or directly and fully guaranteed or insured
by the United States government or any agency or instrumentality thereof;
3
(2) certificates of deposit, time deposits and eurodollar time
deposits with maturities of one year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one year and overnight
bank deposits, in each case with any commercial bank having capital and
surplus in excess of $500 million;
(3) repurchase obligations for underlying securities of the types
described in clause (1) entered into with any financial institution
meeting the qualifications specified in clause (2) above;
(4) commercial paper rated A-1 or the equivalent thereof by
Moody's or S&P and in each case maturing within one year after the date of
acquisition;
(5) readily marketable direct obligations issued by any state of
the United States of America or any political subdivision thereof maturing
within one year from the date of acquisition thereof having one of the two
highest rating categories obtainable from either Moody's or S&P; and
(6) investment funds investing at least 95% of their assets in
securities of the types described in clauses (1)-(5) above.
"Change of Control" means (1) any sale, lease, exchange or other
disposition (in one transaction or a series of related transactions) of all or
substantially all of the assets of the Company and its Subsidiaries; (2) a
majority of the Board of Directors of the Company or of Parent shall consist of
Persons who are not Continuing Directors of the Company or Parent, as the case
may be; or (3) any Person or group of related Persons (other than the Management
Group) for purposes of Section 13(d) of the Exchange Act, becomes the beneficial
owner of the power, directly or indirectly, to vote or direct the voting of
securities having more than 50% of the ordinary voting power for the election of
directors of the Company or of Parent.
"Clearstream" means Clearstream Banking, S.A.
"Collateral" shall have the meaning ascribed to such term in the
Second Lien Security Agreement.
"Collateral Agent" means the Trustee, in its capacity as Collateral
Agent under the Collateral Agreements, together with its successors in such
capacity.
"Collateral Agreements" means the Intercreditor Agreement
and the Second Lien Collateral Documents.
"Commission" means the U.S. Securities and Exchange
Commission or its successor.
"Commodity Agreement" means, in respect of a Person, any forward
contract, commodity swap agreement, commodity option agreement or other similar
agreement or arrangement designed to protect such Person against fluctuations in
commodity prices.
"Company" means North Atlantic Trading Company, Inc., a Delaware
corporation, until a successor replaces it in accordance with Article 5 hereof
and thereafter means the successor.
"Consolidated Cash Flow" for any period means the Consolidated Net
Income for such period, plus the following to the extent deducted in calculating
such Consolidated Net Income: (1) income tax expense, (2) Consolidated Interest
4
Expense, (3) depreciation expense, (4) amortization expense, and (5) all other
non-cash items, including LIFO adjustments, stock option expense and post
retirement expense, reducing Consolidated Net Income (excluding any non-cash
item to the extent it represents an accrual of or reserve for cash disbursements
for any subsequent period prior to the Stated Maturity of the Notes or
amortization of a prepaid cash expense that was paid in a prior period) and
less, to the extent added in calculating Consolidated Net Income, non-cash items
(excluding such non-cash items to the extent they represent an accrual for cash
receipts reasonably expected to be received prior to the Stated Maturity of the
Notes), in each case for such period. Notwithstanding the foregoing, the income
tax expense, depreciation expense and amortization expense of a Subsidiary of
the Company shall be included in Consolidated Cash Flow only to the extent (and
in the same proportion) that the net income of such Subsidiary was included in
calculating Consolidated Net Income.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its Restricted Subsidiaries determined in
accordance with GAAP, plus, to the extent not included in such interest expense:
(1) interest expense attributable to Capitalized Lease
Obligations;
(2) amortization of debt discount;
(3) capitalized interest;
(4) non-cash interest expense;
(5) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing;
(6) interest actually paid by the Company or any such Restricted
Subsidiary under any Guarantee of Indebtedness or other obligation of any
other Person;
(7) net payments (whether positive or negative) pursuant to
Interest Rate Agreements;
(8) the cash contributions to any employee stock ownership plan or
similar trust to the extent such contributions are used by such plan or
trust to pay interest or fees to any Person (other than the Company) in
connection with Indebtedness Incurred by such plan or trust; and
(9) cash and Disqualified Stock dividends in respect of all
Preferred Stock of Subsidiaries and Disqualified Stock of the Company held
by Persons other than the Company or a Restricted Subsidiary of the
Company
and less:
(a) to the extent included in such interest expense, the
amortization of capitalized debt issuance costs; and
(b) interest income.
"Consolidated Leverage Ratio" as of any date of determination means
the ratio of (1) Consolidated Total Indebtedness as of the date of such
determination to (2) the aggregate amount of Consolidated Cash Flow for the
5
period of the most recent four consecutive fiscal quarters ending prior to the
date of such determination and as to which financial statements are available;
provided, however, that:
(a) if the Company or any of its Restricted Subsidiaries has
Incurred any Indebtedness since the beginning of such period and through
the date of determination of the Consolidated Leverage Ratio that remains
outstanding or if the transaction giving rise to the need to calculate the
Consolidated Leverage Ratio is an Incurrence of Indebtedness, or both,
Consolidated Cash Flow and Consolidated Total Indebtedness for such
period, or on the date of determination, as the case may be, shall be
calculated after giving effect on a pro forma basis to (1) such
Indebtedness as if such Indebtedness had been Incurred on the first day of
such period (provided that to the extent such Indebtedness reflects
working capital requirements in the ordinary course and is Incurred under
a revolving credit facility (or similar arrangement or under any
predecessor revolving credit or similar arrangement) the actual historical
balances of such Indebtedness shall be considered outstanding for purposes
of this calculation), and (2) the discharge of any other Indebtedness
repaid, repurchased, defeased or otherwise discharged with the proceeds of
such new Indebtedness as if such discharge had occurred on the first day
of such period;
(b) if since the beginning of such period the Company or any of
its Restricted Subsidiaries shall have made any Asset Disposition or if
the transaction giving rise to the need to calculate the Consolidated
Leverage Ratio is an Asset Disposition, Consolidated Cash Flow for such
period shall be reduced by an amount equal to the Consolidated Cash Flow
(if positive) attributable to the assets which are the subject of such
Asset Disposition for such period or increased by an amount equal to the
Consolidated Cash Flow (if negative) attributable thereto for such period;
(c) if since the beginning of such period the Company or any of
its Restricted Subsidiaries (by merger or otherwise) shall have made an
Investment in any Person which becomes a Restricted Subsidiary of the
Company as a result thereof or made an acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder
which constitutes all or substantially all of an operating unit, business
or division, Consolidated Cash Flow for such period shall be calculated
after giving pro forma effect thereto (including the Incurrence of any
Indebtedness) as if such Investment or acquisition occurred on the first
day of such period (including any pro forma expense and cost reductions
calculated on a basis consistent with Regulation S-X under the Exchange
Act); and
(d) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary of the Company or was merged
with or into the Company or any Restricted Subsidiary of the Company since
the beginning of such period) shall have made any Asset Disposition,
Investment or acquisition of assets that would have required an adjustment
pursuant to clause (b) or (c) above if made by the Company or a Restricted
Subsidiary of the Company during such period, Consolidated Cash Flow for
such period shall be calculated after giving pro forma effect thereto (as
would have been determined in accordance with clause (b) or (c) above, as
applicable) as if such Asset Disposition, Investment or acquisition
occurred on the first day of such period.
"Consolidated Net Income" means, for any period, the consolidated
net income (loss) of the Company and its Restricted Subsidiaries determined in
accordance with GAAP; provided, however, that there shall not be included in
such Consolidated Net Income:
(1) any net income (but not loss) of any Restricted Subsidiary of
the Company to the extent that the payment of dividends or the making of
distributions by such Restricted Subsidiary, directly or indirectly, to
the Company is restricted by contract, operation of law or otherwise;
6
(2) any after-tax gain or loss realized upon the sale or other
disposition of any assets of the Company or its Restricted Subsidiaries
(including pursuant to any Sale/Leaseback Transaction) which are not sold
or otherwise disposed of in the ordinary course of business and any gain
or loss realized upon the sale or other disposition of any Capital Stock
of any Person;
(3) any extraordinary gain or loss (determined on an after-tax
basis);
(4) the cumulative effect of a change in accounting principles;
(5) the net income of any Person, other than a Restricted
Subsidiary, except to the extent of the lesser of (A) dividends or
distributions paid to the Company or any of its Restricted Subsidiaries by
such Person and (B) the net income of such Person (but in no event less
than zero), and the net loss of such Person (other than an Unrestricted
Subsidiary) shall be included only to the extent of the aggregate
Investment of the Company or any of its Restricted Subsidiaries in such
Person;
(6) any non-cash expenses attributable to grants or exercises of
employee stock options; and
(7) except for purposes of calculating Consolidated Cash Flow (as
set forth in the definition of "Consolidated Cash Flow"), in the case of a
successor to the Company by consolidation or merger or as a transferee of
the Company's assets, any net income (or loss) of the successor
corporation prior to such consolidation, merger or transfer of assets.
In addition, Consolidated Net Income shall be reduced by the amount
of any payments to or on behalf of Parent made pursuant to clause (10) of the
last paragraph of the covenant described in Section 4.11. Notwithstanding the
foregoing, for the purpose of Section 4.07 only, there shall be excluded from
Consolidated Net Income any dividends, repayments of loans or advances or other
transfers of assets from Unrestricted Subsidiaries to the Company or a
Restricted Subsidiary to the extent such dividends, repayments or transfers
increase the amount of Restricted Payments permitted under such Section.
"Consolidated Total Indebtedness" means, on any date, the aggregate
Indebtedness of the Company and its Restricted Subsidiaries on such date,
determined on a consolidated basis.
"Continuing Director" of any Person means, as of the date of
determination, any Person who (1) was a member of the Board of Directors of such
Person on the date of this Indenture or (2) was nominated for election or
elected to the Board of Directors of such Person with the affirmative vote of a
majority of the Continuing Directors of such Person who were members of such
Board of Directors at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 11.02 or such other address as to which the
Trustee may give notice to the Company.
"Credit Facilities" means one or more debt facilities (including,
without limitation, the First Lien Credit Agreement), commercial paper
facilities or indentures, in each case with banks or other institutional lenders
or a trustee providing for revolving credit loans, term loans, letters of credit
or issuances of notes, in each case as amended, modified, renewed, refunded,
replaced, restated, substituted or refinanced in whole or in part from time to
time.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement as to
which such Person is a party or a beneficiary.
7
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06, in the form of
Exhibit A except that such Note shall not bear the Global Note Legend and shall
not have the "Schedule of Exchanges of Interests in the Global Note" attached
thereto.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Discharge of First Lien Obligations" means, except to the extent
otherwise expressly provided in the Intercreditor Agreement:
(1) payment in full in cash of the First Lien Obligations (other
than outstanding Letters of Credit);
(2) termination or expiration of all commitments, if any, to
extend credit that would constitute First Lien Obligations; and
(3) termination or cash collateralization (in an amount not in
excess of 105% of the undrawn face amount of all outstanding Letters of
Credit) of all outstanding Letters of Credit.
"Disqualified Stock" means any Capital Stock which, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event (other than an event which
would constitute a Change of Control), (1) matures (excluding any maturity as
the result of an optional redemption by the issuer thereof) or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
Stated Maturity of the Notes, or (2) is convertible into or exchangeable (unless
at the sole option of the issuer thereof) for (a) debt securities or (b) any
Capital Stock referred to in (1) above, in each case at any time prior to the
Stated Maturity of the Notes.
"Euroclear" means the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Agreement" means the exchange agreement, dated as of the
date of this Indenture, made by Parent, the Company and each of the Holders.
"Existing Indebtedness" means Indebtedness of the Company or its
Restricted Subsidiaries in existence on the Issue Date, including the OpCo
Notes.
"Fair Market Value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the transaction. Fair Market
Value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company.
"First Lien Agent" means Fortress Credit Corp., including
its successors and assigns in such capacity.
8
"First Lien Collateral" means all of the assets and property of the
Company, Parent and the Guarantors, whether real, personal or mixed, with
respect to which a consensual Lien is granted as security for any First Lien
Obligation.
"First Lien Collateral Documents" means the Security Agreement (as
defined in the First Lien Credit Agreement) and any other agreement, document,
or instrument pursuant to which a Lien is granted securing any First Lien
Obligation or under which rights or remedies with respect to such Liens are
governed.
"First Lien Credit Agreement" means the Financing Agreement dated as
of June 16, 2005, as amended, among Parent, the Company, the Guarantors party
thereto, the financial institutions from time to time party thereto as lenders
and the First Lien Agent, as agent for the lenders, providing for a revolving
credit facility and term loan.
"First Lien Guarantor" means Parent, in such capacity.
"First Lien Guarantee" means the guarantee set forth in Article XI
of the First Lien Credit Agreement by the First Lien Guarantor of the
Obligations (as defined in the First Lien Credit Agreement) , but shall also
include each other guarantee made by any other guarantor in favor of the First
Lien Agent.
"First Lien Documents" means the First Lien Collateral Documents,
the First Lien Credit Agreement, the First Lien Guarantee, the First Lien
Mortgages, and each of the other Loan Documents (as defined in the First Lien
Credit Agreement).
"First Lien Mortgages" means each mortgage, deed of trust, and other
document or instrument under which any Lien on real property owned or leased by
the Company, Parent or the Guarantors is granted to secure any First Lien
Obligations or under which rights or remedies with respect to any such Liens are
governed.
"First Lien Obligations" means all obligations and all amounts
owing, due, or secured under the terms of the First Lien Credit Agreement or any
other First Lien Document, whether now existing or arising hereafter, including
all principal, premium, interest (including, without limitation, default
interest), fees, attorneys fees, costs, charges, expenses, reimbursement
obligations, obligations to post cash collateral in respect of Letters of Credit
or indemnities in respect thereof, any other indemnities or guarantees, and all
other amounts payable under or secured by any First Lien Document (including, in
each case, all amounts accruing on or after the commencement of any Insolvency
Proceeding relating to any Grantor (as defined in the Intercreditor Agreement),
or that would have accrued or become due under the terms of the First Lien
Documents but for the effect of the Insolvency Proceeding and irrespective of
whether a claim for all or any portion of such amounts is allowable or allowed
in such Insolvency Proceeding); provided, however, that First Lien Obligations
shall not include principal or interest in respect of the Excess Amount (as
defined below).
Notwithstanding the foregoing, unless otherwise agreed to by the
Collateral Agent, if the sum of: (1) indebtedness constituting principal
outstanding under the First Lien Credit Agreement or the other First Lien
Documents; plus (2) without duplication, the aggregate face amount of any
Letters of Credit issued or drawn but not yet reimbursed under the First Lien
Credit Agreement; is in excess of the Cap Amount, then the amount of such excess
(the "Excess Amount") shall not constitute First Lien Obligations. For the
avoidance of doubt, accrued interest (including default interest) on the First
Lien Obligations shall not be included in the determination of the Excess
Amount.
9
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the date of this Indenture, including those
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as are approved by a significant segment of the
accounting profession. Unless otherwise specified, all ratios and computations
based on GAAP contained in this Indenture shall be computed in conformity with
GAAP.
"Global Note Legend" means the legend set forth in Section
2.06(f)(2) which is required to be placed on all Global Notes issued under this
Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, in the form of
Exhibit A, issued in accordance with Section 2.01 or 2.06.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(1) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (2) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantor" means Parent and each Subsidiary Guarantor.
"Hedging Agreement" means, with respect to any Person, any Interest
Rate Agreement, Currency Agreement or Commodity Agreement of such Person.
"Holdco Notes" means the senior discount notes due 2014 issued by
Parent on February 17, 2004.
"Holder" means a registered holder of one or more Notes.
"IAI Global Note(s)" means one or more Global Notes in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold to Institutional Accredited
Investors.
"Incur" means issue, assume, guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Restricted Subsidiary at the time it becomes a Restricted
Subsidiary.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
10
(2) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(3) all obligations of such Person in respect of letters of credit
or other similar instruments (including reimbursement obligations with
respect thereto) (other than obligations with respect to letters of credit
securing obligations (other than obligations described in clauses (1), (2)
and (5)) entered into in the ordinary course of business of such Person to
the extent that such letters of credit are not drawn upon or, if and to
the extent drawn upon, such drawing is reimbursed no later than the third
Business Day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit);
(4) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except trade payables and accrued
expenses Incurred in the ordinary course of business), which purchase
price is due more than six months after the date of placing such property
in service or taking delivery and title thereto or the completion of such
services;
(5) all Capitalized Lease Obligations and all Attributable
Indebtedness of such Person;
(6) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by such
Person;
(7) all Indebtedness of other Persons to the extent Guaranteed by
such Person;
(8) the amount of all obligations of such Person with respect to
the redemption, repayment or other repurchase of any Disqualified Stock
or, with respect to any Restricted Subsidiary of the Company, any
Preferred Stock of such Restricted Subsidiary to the extent such
obligation arises on or before the Stated Maturity of the Notes (but
excluding, in each case, accrued dividends); and
(9) to the extent not otherwise included in this definition,
obligations under Hedging Agreements.
The amount of Indebtedness of any Person at any date shall be the
outstanding principal amount of all unconditional obligations as described
above, as such amount would be reflected on a balance sheet prepared in
accordance with GAAP, and the maximum liability of such Person, upon the
occurrence of the contingency giving rise to the obligation, of any contingent
obligations described above at such date. With respect to Indebtedness of
another Person secured by a Lien on the assets of the Company or any of its
Restricted Subsidiaries, the amount of such Indebtedness shall be limited to the
lesser of the Fair Market Value of the property secured or the amount of the
secured Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" means the $134,947,625 principal amount of 10%
Senior Secured Notes due 2012 of the Company issued on the Issue Date.
"Insolvency Proceeding" means:
11
(a) any voluntary or involuntary case or proceeding under any
Bankruptcy Law with respect to the Company or any of the Guarantors;
(b) any other voluntary or involuntary insolvency or bankruptcy
case or proceeding, or any receivership, liquidation or other similar case or
proceeding with respect to the Company or any of the Guarantors or with respect
to a material portion of their respective assets;
(c) any liquidation, dissolution, or winding up of the Company or
any of the Guarantors whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy; or
(d) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company or the Guarantors.
"Interest Payment Date" means March 1 and September 1 of each year,
commencing on September 1, 2007.
"Institutional Accredited Investors" means 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 that is not also a QIB.
"Intercreditor Agreement" means the Intercreditor Agreement by and
between the First Lien Agent and the Collateral Agent (as the same may be
amended, modified, superseded, reinstated, succeeded or replaced from time to
time in accordance with its terms).
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement as to which such Person is party or a
beneficiary.
"Investment" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts payable on the balance sheet of such Person) or other
extension of credit (including by way of Guarantee or similar arrangement, but
excluding any debt or extension of credit represented by a bank deposit other
than a time deposit) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock,
Indebtedness or other similar instruments issued by such Person. For purposes of
Section 4.07, (1) "Investment" shall include the portion (proportionate to the
Company's equity interest in a Restricted Subsidiary to be designated as an
Unrestricted Subsidiary) of the Fair Market Value of the net assets of such
Restricted Subsidiary of the Company at the time that such Restricted Subsidiary
is designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall
be deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary in an amount (if positive) equal to (x) the Company's "Investment" in
such Subsidiary at the time of such redesignation less (y) the portion
(proportionate to the Company's equity interest in such Subsidiary) of the Fair
Market Value of the net assets of such Subsidiary at the time that such
Subsidiary is so redesignated a Restricted Subsidiary; and (2) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its Fair
Market Value at the time of such transfer, in each case as evidenced by a
resolution of such Board of Directors certified in an Officers' Certificate to
the Trustee.
"Issue Date" means May 9, 2007, the date on which the Initial Notes
are originally issued.
12
"Letters of Credit" means the "Letters of Credit," as that term is
defined in the First Lien Credit Agreement.
"Lien" means any lien, mortgage, pledge, assignment, security
interest, charge, or encumbrance of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention agreement,
and any lease in the nature thereof) and any option, trust, or other
preferential arrangement having the practical effect of any of the foregoing.
"Management Group" means Xxxxxx X. Xxxxx, Xx. and other
members of senior management of the Company or Parent on the Issue Date.
"Maturity Date" means March 1, 2012.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only as
and when received) therefrom in each case net of:
(1) all legal, title and recording tax expenses, commissions and
other fees and expenses Incurred, and all Federal, state, foreign and
local taxes required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by any
assets subject to such Asset Disposition, in accordance with the terms of
any Lien upon such assets, or which must by its terms, or in order to
obtain a necessary consent to such Asset Disposition or by applicable law,
be repaid out of the proceeds from such Asset Disposition;
(3) all distributions and other payments required to be made to
any Person owning a beneficial interest in assets subject to sale or
minority interest holders in Subsidiaries or joint ventures as a result of
such Asset Disposition;
(4) the deduction of appropriate amounts to be provided by the
seller as a reserve, in accordance with GAAP, against any liabilities
associated with the assets disposed of in such Asset Disposition,
provided, however, that upon any reduction in such reserves (other than to
the extent resulting from payments of the respective reserved
liabilities), Net Available Cash shall be increased by the amount of such
reduction to reserves; and
(5) any portion of the purchase price from an Asset Disposition
placed in escrow (whether as a reserve for adjustment of the purchase
price, for satisfaction of indemnities in respect of such Asset
Disposition or otherwise in connection with such Asset Disposition),
provided, however, that upon the termination of such escrow, Net Available
Cash shall be increased by any portion of funds therein released to the
Company or any Restricted Subsidiary.
"Net Cash Proceeds," with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually Incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result of such issuance or sale.
"Non-Recourse Debt" means Indebtedness (1) as to which neither the
Company nor any Restricted Subsidiary (a) provides any guarantee or credit
support of any kind (including any undertaking, guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) or (b) is directly or
indirectly liable (as a guarantor, general partner or otherwise) and (2) no
default with respect to which (including any rights that the holders thereof may
13
have to take enforcement action against an Unrestricted Subsidiary) would permit
(upon notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default under such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S of the Securities Act.
"Note Guarantee" means the Guarantee of the Notes by a Guarantor.
"Notes" means, collectively, the Initial Notes and the Additional
Notes, if any, and treated as a single class of notes, as amended or
supplemented from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture.
"Obligations" means any principal, premium, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"Officer" means the Chairman of the Board, the Vice Chairman of the
Board, the President, Chief Financial Officer, any Senior Vice President, any
Vice President, the Treasurer, the Secretary or Assistant Secretary of the
Company or, in the case of a reference to Officers of any of the Guarantors or
to an Officers' Certificate to be delivered by or on behalf of any of the
Guarantors, of such Guarantor.
"Officers' Certificate" means a certificate signed by two Officers
of the Company or a Guarantor, as the case may be, and which complies with the
provisions of Section 11.04 hereof.
"144A Global Note(s)" means one or more Global Notes in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"OpCo Notes" means the Senior Notes due 2012 issued by the Company
on February 17, 2004.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee, and which complies, if applicable, with the
provisions of Section 11.04 hereof. The counsel may be an employee of or counsel
to the Company or the Trustee.
"Parent" means North Atlantic Holding Company, Inc., a
Delaware corporation.
"Pari Passu Indebtedness" means any Indebtedness of the Company or
any Subsidiary Guarantor that ranks pari passu as to payment with the Notes or
the Subsidiary Guarantee of such Subsidiary Guarantor, as applicable.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively.
"Permitted Investment" means an Investment by the Company or any of
its Restricted Subsidiaries in:
(1) a Restricted Subsidiary of the Company;
14
(2) another Person if as a result of such Investment such other
Person becomes a Restricted Subsidiary of the Company or is merged or
consolidated with or into, or transfers or conveys all or substantially
all its assets to, the Company or a Restricted Subsidiary of the Company;
(3) Cash Equivalents;
(4) receivables owing to the Company or any of its Restricted
Subsidiaries, created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
(5) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of
business;
(6) loans and advances to employees made in the ordinary course of
business consistent with past practices of the Company or such Restricted
Subsidiary not to exceed $2.0 million at any time;
(7) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the Company
or any of its Restricted Subsidiaries or in satisfaction of judgments or
claims;
(8) Investments not to exceed $7.5 million in the aggregate at any
time (less the amount of any Restricted Payments made pursuant to clause
(16)(b) of Section 4.07 it being understood that any Restricted Payments
made pursuant to clause (16) of Section 4.07 shall be first made pursuant
to clause (16)(a));
(9) Persons to the extent such Investment is received by the
Company or any Restricted Subsidiary as consideration for Asset
Dispositions effected in compliance with Section 4.10 or in connection
with any sale of assets not constituting an Asset Disposition;
(10) prepayments and other credits to suppliers made in the
ordinary course of business consistent with the past practices of the
Company and its Restricted Subsidiaries;
(11) Investments in connection with pledges, deposits, payments or
performance bonds made or given in the ordinary course of business in
connection with or to secure statutory, regulatory or similar obligations,
including obligations under health, safety or environmental obligations;
and
(12) Investments held by the Company or any Restricted Subsidiary
on the Issue Date; and
(13) Investments in Holdco Notes.
"Permitted Liens" means:
(1) Liens granted by the Company and the Guarantors which secure
Indebtedness to the extent the Indebtedness is Incurred pursuant to
Section 4.09(b)(1);
(2) Liens in favor of the Company or any Guarantor;
15
(3) Liens on property of a Person existing at the time such Person
is merged into or consolidated with or acquired by the Company or any
Restricted Subsidiary thereof; provided that such Liens were not Incurred
in contemplation of such acquisition and do not extend to any assets of
the Company or its Restricted Subsidiaries other than those acquired in
connection with such transaction;
(4) Liens to secure the performance of obligations (including
letters of credit), surety or appeal bonds, performance bonds or other
obligations of a like nature Incurred in the ordinary course of business;
(5) Liens existing on the Issue Date;
(6) Liens securing the Notes, the Indenture and all other Second
Lien Obligations;
(7) Liens in respect of extensions, renewals, refundings or
refinancings of any Indebtedness secured by the Liens referred to in
clauses (1), (2), (3) and (5) above and (9) below, provided that the Liens
in connection with such extensions, renewals, refundings or refinancings
shall be limited to all or part of the specific property which was subject
to the original Lien;
(8) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded,
provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor;
(9) any Lien securing purchase money obligations Incurred in
connection with the purchase of real or personal property, provided that
such Liens do not extend to any property (other than the property so
purchased) owned by the Company or its Restricted Subsidiaries and is not
Incurred more than 30 days after the Incurrence of such Indebtedness
secured by such Lien;
(10) Liens to secure Capitalized Lease Obligations (except in
respect of Sale Leaseback Transactions) on real or personal property of
the Company or any of its Restricted Subsidiaries to the extent
consummated in compliance with the Indenture, provided that such Liens do
not extend to or cover any property of the Company of any of its
Restricted Subsidiaries other than the property subject to such
Capitalized Lease Obligation;
(11) judgment Liens not giving rise to a Default or Event of
Default so long as such Liens are adequately bonded and any appropriate
legal proceedings which may have been duly initiated for the review of
such judgment have not been finally terminated or the period within which
the proceedings may be initiated has not expired; and
(12) Liens Incurred in the ordinary course of business of the
Company or any Restricted Subsidiary thereof with respect to obligations
that do not exceed $5.0 million at any one time outstanding and that (A)
are not Incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the ordinary
course of business) and (B) do not in the aggregate materially detract
from the value of the property or materially impair the use thereof in the
operation of the business by the Company or such Restricted Subsidiary.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
16
"Preferred Stock," as applied to the Capital Stock of any entity,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such entity,
over shares of Capital Stock of any other class of such entity.
"Private Placement Legend" means the legend set forth in Section
2.06(f)(1) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
A "Public Market" exists at any time with respect to the common
stock of the Company or Parent if (1) the common stock of the Company or Parent,
as applicable, is then registered with the Commission pursuant to Section 12(b)
or 12(g) of the Exchange Act and traded on a national securities exchange and
(2) at least 15% of the total issued and outstanding common stock of the Company
or Parent, as applicable, has been distributed prior to such time by means of an
effective registration statement under the Securities Act.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A.
"Record Date" means the record dates specified in the Notes, whether
or not a Legal Holiday.
"Refinancing Indebtedness" means Indebtedness of the Company or any
Restricted Subsidiary that refunds, refinances, replaces, renews, repays or
extends (including pursuant to any defeasance or discharge mechanism)
(collectively, "refinances," and "refinanced" shall have a correlative meaning)
any Indebtedness of the Company or any Restricted Subsidiary (including
Indebtedness of the Company that refinances Indebtedness of any Restricted
Subsidiary and Indebtedness of any Restricted Subsidiary that refinances
Indebtedness of another Restricted Subsidiary) including Indebtedness that
refinances Refinancing Indebtedness; provided, however, that:
(1) the Refinancing Indebtedness has a Stated Maturity no earlier
than the earlier of (A) the first anniversary of the Stated Maturity of
the Notes and (B) the Stated Maturity of the Indebtedness being
refinanced;
(2) the Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or greater than
the lesser of (A) the Average Life of the Notes and (B) the Average Life
of the Indebtedness being refinanced;
(3) the Refinancing Indebtedness is subordinated in right of
payment to the Notes on the same terms as the Indebtedness being
refinanced if such Indebtedness is subordinate in right of payment to the
Notes;
(4) the Refinancing Indebtedness is in an aggregate principal
amount (or if issued with original issue discount, an aggregate issue
price) that is equal to (or 101% of, in the case of a refinancing of the
Notes in connection with a Change of Control) or less than the sum of the
aggregate principal amount (or if issued with original issue discount, the
aggregate accreted value) then outstanding of the Indebtedness being
refinanced (plus the amount of any premium or accrued interest required to
be paid in connection therewith and reasonable fees and expenses
therewith); and
(5) Refinancing Indebtedness shall not include Indebtedness of a
Restricted Subsidiary which refinances Indebtedness of the Company.
17
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note(s)" means one or more Global Note in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee that will be issued in a denomination equal to
the outstanding principal amount of the Notes sold in reliance on, Regulation S.
"Responsible Officer" when used with respect to the Trustee, means
any officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note
bearing the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the
Private Placement Legend.
"Restricted Payment" has the meaning provided in Section 4.07.
"Restricted Subsidiary" means any Subsidiary of the Company other an
Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or a Restricted
Subsidiary transfers such property to a Person and the Company or a Subsidiary
leases it from such Person.
"Second Lien Collateral" means all of the assets and property of the
Company, Parent or the Guarantors, whether real, personal, or mixed, with
respect to which a Lien is granted as security for any Second Lien Obligations.
"Second Lien Collateral Documents" means the Second Lien Security
Agreement and any other agreement, document, or instrument pursuant to which a
Lien is granted securing any Second Lien Obligations or under which rights or
remedies with respect to such Liens are governed.
"Second Lien Documents" means the Second Lien Collateral Documents,
this Indenture, the Notes, the Second Lien Guarantee and the Second Lien
Mortgages, as each may be amended, restated, supplemented, modified, renewed, or
extended from time to time in a manner that is not in conflict with the
provisions of the Intercreditor Agreement.
"Second Lien Guarantors" means Parent and the Subsidiary Guarantors,
in such capacity.
18
"Second Lien Guarantee" means the guarantee set forth in Article 10
of this Indenture by the Second Lien Guarantors, but shall also include each
other guarantee made by any other guarantor in favor of the Collateral Agent.
"Second Lien Mortgages" means each mortgage, deed of trust, and any
other document or instrument under which any Lien on real property owned or
leased by the Company or the Guarantors is granted to secure any Second Lien
Obligations or under which rights or remedies with respect to any such Liens are
governed.
"Second Lien Obligations" means all obligations and all amounts
owing, due, or secured under the terms of this Indenture or any other Second
Lien Document, whether now existing or arising hereafter, including all
principal, premium, interest, fees, attorneys fees, costs, charges, expenses,
reimbursement obligations, indemnities, guarantees, and all other amounts
payable under or secured by any Second Lien Document (including, in each case,
all amounts accruing on or after the commencement of any Insolvency Proceeding
relating to any Grantor, or that would have accrued or become due under the
terms of the Second Lien Documents but for the effect of the Insolvency
Proceeding and irrespective of whether a claim for all or any portion of such
amounts is allowable or allowed in such Insolvency Proceeding).
"Second Lien Security Agreement" means the security agreement, dated
as of the date of this Indenture, made by the Company and each of the Guarantors
in favor of the Collateral Agent.
"Secured Indebtedness" means (1) any Indebtedness of the Company or
any Guarantor that is secured by any assets or property of the Company or any
Guarantor and (2) any Indebtedness of a Subsidiary of the Company that is not a
Guarantor.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Significant Subsidiary" means (1) any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the Commission and (2) any Restricted
Subsidiary that, when aggregated with all other Restricted Subsidiaries that are
not otherwise Significant Subsidiaries and as to which any event described in
Sections 6.01(a)(7), (8), (9) or (10) has occurred and is continuing, would
constitute a Significant Subsidiary under clause (1) of this definition.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision.
"Subordinated Obligations" means any Indebtedness of the Company or
a Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter
Incurred) which is subordinate or junior in right of payment to the Notes or to
the Subsidiary Guarantee of such Subsidiary Guarantor, as applicable, pursuant
to a written agreement.
"Subsidiary" of any Person means any corporation, limited liability
company, association, partnership or other business entity of which more than
50% of the total voting power of the Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries of
such Person or (3) one or more Subsidiaries of such Person. Unless otherwise
19
specified herein, each reference to a Subsidiary shall refer to a Subsidiary of
the Company.
"Subsidiary Guarantee" means the Guarantee of the Notes by a
Subsidiary Guarantor.
"Subsidiary Guarantor" means each Subsidiary of the Company in
existence on the Issue Date and each Subsidiary (other than Unrestricted
Subsidiaries) created or acquired by the Company after the Issue Date.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 9.03 hereof; provided, however, that, in the event the Trust Indenture
Act of 1939 is amended after such date and is applicable to the Indenture, "TIA"
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"Trustee" means U.S. Bank National Association, a national banking
association, until a successor replaces it in accordance with Article 7 and
thereafter means the successor serving hereunder.
"Treasury Rate" means, as of the applicable redemption date, the
yield to maturity as of such redemption date of United States Treasury
securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15(519) that has become publicly
available at least two Business Days prior to such redemption date (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from such redemption date
to March 1, 2008; provided, however, that if the period from such redemption
date to March 1, 2008 is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year will be used.
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note in the form of
Exhibit A attached hereto that bears the Global Note Legend and that has the
"Schedule of Exchanges of Interests in the Global Note" attached thereto, but
that does not bear the Private Placement Legend, and that is deposited with or
on behalf of, and registered in the name of, the Depositary or its nominee.
"Unrestricted Subsidiary" means (1) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors of the Company in the manner provided below and (2)
any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the
Company may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary of the Company) to be an Unrestricted
Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital
Stock or Indebtedness of, or owns or holds any Lien on any property of, the
Company or any Restricted Subsidiary of the Company that is not a Subsidiary of
the Subsidiary to be so designated; provided, however, (i) each Subsidiary to be
so designated and each of its Subsidiaries has not at the time of designation,
and does not thereafter, Incur any Indebtedness pursuant to which the lender has
recourse to any of the assets of the Company or any of its Restricted
Subsidiaries and (ii) either (A) the Subsidiary to be so designated has total
consolidated assets of $10,000 or less or (B) if such Subsidiary has
consolidated assets greater than $10,000, then such designation would be
permitted under Section 4.07. The Board of Directors of the Company may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
however, that immediately after giving effect to such designation (x) the
Company could Incur $1.00 of additional Indebtedness under Section 4.09(a) and
(y) no Default shall have occurred and be continuing. Any such designation by
the Board of Directors of the Company shall be evidenced to the Trustee by
20
promptly filing with the Trustee a copy of the Board Resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Wholly-Owned Subsidiary" means a Restricted Subsidiary of the
Company, all of the Capital Stock of which (other than directors' qualifying
shares) is owned by the Company or another Wholly-Owned Subsidiary.
Section 1.02. Other Definitions.
Defined in
Term Section
---- -------
"actual knowledge".................................... 7.02
"Affiliate Transaction"............................... 4.11
"Authentication Order"................................ 2.02
"covenant defeasance option".......................... 8.01
"Declaration"......................................... 6.02
"Default Amount"...................................... 6.02
"Event of Default".................................... 6.01
"Excess Proceeds"..................................... 4.10
"Funding Guarantor"................................... 10.05
"Guaranteed Obligations".............................. 10.01
"legal defeasance option"............................. 8.01
"Legal Holiday"....................................... 11.07
"Net Proceeds Offer".................................. 4.10
"Note Register" ...................................... 2.03
"Offer Amount"........................................ 3.09
"Offer Period"........................................ 3.09
"Offered Price" ...................................... 4.10
"Paying Agent"........................................ 2.03
"Payment Amount"...................................... 4.10
"Purchase Date"....................................... 3.09
"Registrar"........................................... 2.03
"Successor Company"................................... 5.01
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture incorporates a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
To the extent applicable, the following TIA terms used in this
Indenture have the following meanings:
"indenture securities" means the Notes and the Note Guarantees;
"indenture security holder" means a Holder;
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"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Company, the Guarantors
and any successor obligor upon the Notes.
To the extent applicable, all other terms used in this Indenture
that are defined by the TIA, defined by TIA reference to another statute or
defined by Commission rule under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning\
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating.
(a) The Notes, the notation thereon relating to the Note
Guarantees and the Trustee's certificate of authentication thereon shall be
substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or Depositary rule
or usage. The Company, the Guarantors and the Trustee shall approve the form of
the Notes and any notation, legend or endorsement on them. Each Note shall be
dated the date of its authentication. The Notes shall be in denominations of
$1.00 and integral multiples thereof.
The terms and provisions contained in the forms of the Notes and the
Note Guarantees, annexed hereto as Exhibit A, shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
To the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) Notes issued in global form shall be substantially in the form
of Exhibit A attached hereto (including the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Notes
issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global
22
Note" attached thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the custodian for the Depositary, at the direction of the Trustee, in
accordance with written instructions given by the Holder thereof as required by
Section 2.06 hereof.
(c) Participants and Indirect Participants shall have no rights
either under this Indenture or under any Global Note with respect to such Global
Note held on their behalf by the custodian for the Depositary and the Depositary
shall be treated by the Company, the Trustee and any agent of either of them as
the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any Agent 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 the
Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Note.
Section 2.02. Execution and Authentication.
One Officer shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid. Each Guarantor shall execute a Note Guarantee in the manner set forth in
Section 10.02.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by one
Officer (an "Authentication Order"), authenticate Initial Notes for original
issue on the Issue Date in aggregate principal amount not to exceed $134,947,625
(other than as provided in Section 2.07). The Trustee shall authenticate
Additional Notes thereafter (so long as permitted by the terms of this
Indenture) for original issue upon one or more Authentication Orders in
aggregate principal amount as specified in such order (other than as provided in
Section 2.07). Each such Authentication Order shall specify the number,
principal amount of Notes and registered Holder of each of the Notes to be
authenticated, whether the Notes are to be Initial Notes or Additional Notes and
whether the Notes are to be issued as Definitive Notes or Global Notes, delivery
instructions and such other information as the Trustee shall reasonably request.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Holders, the Company or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New York)
where (i) Notes may be presented for registration of transfer or for exchange
("Registrar"), (ii) Notes may be presented for payment ("Paying Agent") and
23
(iii) notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Registrar shall keep a register (the "Note
Register") of the Notes and of their transfer and exchange. The Company may
appoint one or more co-registrars and one or more additional paying agents. The
term "Registrar" includes any co-registrar and the term "Paying Agent" includes
any additional paying agent. The Company may change any Paying Agent or
Registrar without prior notice to any Holder. The Company shall notify the
Trustee and the Trustee shall notify the Holders of the name and address of any
Agent not a party to this Indenture. The Company or any Guarantor may act as
Paying Agent or Registrar. The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which shall incorporate
the provisions of the TIA to the extent the TIA is applicable to this Indenture.
The agreement shall implement the provisions of this Indenture that relate to
such Agent. If the Company fails to maintain a Registrar or Paying Agent, or
fails to give the foregoing notice, the Trustee shall act as such, and shall be
entitled to appropriate compensation in accordance with Section 7.07 hereof.
(b) The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of notices and demands in connection with the
Notes and the Trustee hereby agrees to initially act as such.
(c) The Company initially appoints the Depository Trust Company to
act as Depositary with respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company, the Guarantors or any other obligor on the Notes shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent shall hold in trust for the benefit of the Holders or the Trustee
all money held by the Paying Agent for the payment of principal of, premium, if
any, and interest on the Notes, and shall notify the Trustee of any Default by
the Company, any of the Guarantors or any other obligor on the Notes in making
any such payment. While any such Default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company, the
Guarantors or any other obligor on the Notes at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon payment over to the
Trustee, the Paying Agent (if other than the Company or a Guarantor) shall have
no further liability for the money delivered to the Trustee. If the Company, the
Guarantors or any other obligor on the Notes acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is not
the Registrar, the Company, the Guarantors or any other obligor on the Notes
shall furnish to the Trustee at least seven Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Holders, including the aggregate principal amount of
the Notes held by each thereof, and the Company, the Guarantors or any other
obligor on the Notes shall otherwise comply with TIA ss. 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
24
successor Depositary or a nominee of such successor Depositary. All Global Notes
will be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee written notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary or (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the Trustee
or (iii) upon written request of the Depositary if a Default or Event of Default
shall have occurred and be continuing. Upon the occurrence of any of the
preceding events in (i), (ii) or (iii) above, Definitive Notes shall be issued
in such names as the Depositary shall instruct the Trustee in writing. Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.07 and 2.10 hereof. Except as provided herein, every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a); provided, however, that beneficial interests in a
Global Note may be transferred and exchanged as provided in Section 2.06(b), (c)
or (d) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (1) or (2) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend. Beneficial
interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(1) above, the transferor
of such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order from
a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (1) above.
(3) Transfer of Beneficial Interests in a Restricted Global Note
to Another Restricted Global Note. A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in
the form of a beneficial interest in another Restricted Global Note if the
25
transfer complies with the requirements of Section 2.06(b)(2) above and
the Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by
item (3)(d) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any holder
thereof for a beneficial interest in an Unrestricted Global Note or transferred
to a Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note if the exchange or transfer complies with the
requirements of Section 2.06(b)(2) above and:
(A) such exchange or transfer is being effected pursuant to
an effective registration statement under the Securities Act and in
compliance with any applicable prospectus delivery requirements of
the Securities Act; or
(B) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest
to a Person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
If any such transfer or exchange is effected pursuant to this clause
(4) at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
26
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred or exchanged
pursuant to this clause (4).
(5) Transfer or Exchange of Beneficial Interests in an
Unrestricted Global Note for Beneficial Interests in a Restricted Global
Note Prohibited. Beneficial interests in an Unrestricted Global Note
cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests in Global Notes
for Definitive Notes.
(1) Transfer or Exchange of Beneficial Interests in Restricted
Global Notes to Restricted Definitive Notes. If any holder of a beneficial
interest in a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d) thereof,
if applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
27
the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Note to be reduced accordingly pursuant to Section
2.06(g) hereof, and the Company shall execute and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate and deliver to the Person designated in the
instructions a Restricted Definitive Note in the appropriate principal
amount. Any Restricted Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(1)
shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and
the Participant or Indirect Participant. The Trustee shall deliver such
Restricted Definitive Notes to the Persons in whose names such Notes are
so registered. Any Restricted Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c)(1) shall bear the Private Placement Legend and shall be subject to
all restrictions on transfer contained therein.
(2) Transfer or Exchange of Beneficial Interests in Restricted
Global Notes to Unrestricted Definitive Notes. A holder of a beneficial
interest in a Restricted Global Note may exchange such beneficial interest
for an Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:
(A) such exchange or transfer is being effected pursuant to
an effective registration statement under the Securities Act and in
compliance with any applicable prospectus delivery requirements of
the Securities Act; or
(B) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form
of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (B), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(3) Transfer or Exchange of Beneficial Interests in Unrestricted
Global Notes to Unrestricted Definitive Notes. If any holder of a
beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for an Unrestricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note, then, upon satisfaction of
the conditions set forth in Section 2.06(b)(2) hereof, the Trustee shall
cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.06(g) hereof, and the Company
shall execute and, upon receipt of an Authentication Order in accordance
28
with Section 2.02 hereof, the Trustee shall authenticate and deliver to
the Person designated in the instructions an Unrestricted Definitive Note
in the appropriate principal amount. Any Unrestricted Definitive Note
issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(3) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Unrestricted Definitive Notes to the Persons in whose names
such Notes are so registered. Any Unrestricted Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(3)
shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item (2)(b)
thereof;
(B) if such Restricted Definitive Note is being transferred
to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred
to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred
to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3)(d) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred
to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
29
the Trustee shall cancel the Restricted Definitive Note, increase or cause
to be increased in a corresponding amount pursuant to Section 2.06(g)
hereof the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above,
the 144A Global Note, in the case of clause (C) above, the Regulation S
Global Note, and in all other cases, the IAI Global Note.
(2) Transfer or Exchange of Restricted Definitive Notes to
Beneficial Interests in Unrestricted Global Notes. A Holder of a
Restricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is being effected pursuant to
an effective registration statement under the Securities Act and in
compliance with any applicable prospectus delivery requirements of
the Securities Act; or
(B) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in
the Unrestricted Global Note, a certificate from such Holder
in the form of Exhibit C hereto, including the certifications
in item (1)(c) thereof; or
(2) if the Holder of such Restricted Definitive Note
proposes to transfer such Note to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (B), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(2), the Trustee shall cancel such Restricted
Definitive Notes and increase or cause to be increased in a corresponding
amount pursuant to Section 2.06(g) hereof the aggregate principal amount
of the Unrestricted Global Note.
(3) Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interests in Unrestricted Global Notes. A Holder of an
Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Note and increase or cause to be
increased in a corresponding amount pursuant to Section 2.06(g) hereof the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2) or (3) above at a
time when an Unrestricted Global Note has not yet been issued, the Company shall
30
issue and, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so exchanged or transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon written request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(e).
(1) Transfer of Restricted Definitive Notes to Restricted
Definitive Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form of
a Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(2) Transfer or Exchange of Restricted Definitive Notes to
Unrestricted Definitive Notes. Any Restricted Definitive Note may be
exchanged by the Holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the form
of an Unrestricted Definitive Note if:
(A) such exchange or transfer is being effected pursuant to
an effective registration statement under the Securities Act and in
compliance with any applicable prospectus delivery requirements of
the Securities Act; or
(B) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof;
or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
31
and, in each such case set forth in this subparagraph (B), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(3) Transfer of Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer
such Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a written request to
register such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND ACCORDINGLY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN
AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904
OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY, IF THE COMPANY SO REQUESTS) OR
(F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION; AND
32
(2) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER
THE SECURITIES ACT. THE INDENTURE GOVERNING THIS SECURITY CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER
OF THIS SECURITY IN VIOLATION OF THE FOREGOING."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4), (c)(2),
(c)(3), (d)(2), (d)(3), (e)(2) or (e)(3) to this Section 2.06 (and
all Notes issued in exchange therefor or substitution thereof) shall
not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION
2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY."
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Company or its agents 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.
(g) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
33
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's request.
(2) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company and the Trustee may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.14 and 9.05
hereof).
(3) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.
(5) The Company shall not be required (A) to issue, to register
the transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part or (C) to register
the transfer of or to exchange a Note between a record date and the next
succeeding Interest Payment Date.
(6) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(7) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
34
Section 2.07. Replacement Notes.
(a) If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt by it of the written order of the Company signed by two Officers of
the Company, shall authenticate a replacement Note if the Trustee's requirements
for replacements of Notes are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Guarantors, the
Trustee, any Agent or any authenticating agent from any loss, liability or
expense which any of them may suffer if a Note is replaced and subsequently
presented or claimed for payment. The Company and the Trustee may charge a
Holder for reasonable out-of-pocket expenses in replacing a Note.
(b) Every replacement Note is an obligation of the Company.
Section 2.08. Outstanding Notes.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by the Company or by the
Trustee, those delivered to the Trustee for cancellation and those described in
this Section as not outstanding.
(b) If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
(c) If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
(d) Subject to Section 2.09 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company or a Guarantor
holds the Note; provided that Notes held by the Company or a Subsidiary
Guarantor shall be deemed not to be outstanding for purposes of Section 3.07(c)
hereof.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, the Guarantors, or any of their respective Affiliates shall be
considered as though not outstanding, except that for purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which a Responsible Officer knows to be so owned shall be
so considered.
Section 2.10. Temporary Notes.
Until Definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of Definitive Notes but may have variations
that the Company, the Guarantors and the Trustee consider appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee, upon receipt of the written order of the Company signed by two Officers
of the Company, shall authenticate Definitive Notes in exchange for temporary
Notes. Until such exchange, temporary Notes shall be entitled to the same
rights, benefits and privileges as Definitive Notes.
35
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes, if not already cancelled, surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Notes (subject to the record retention requirement of
the Exchange Act or other applicable laws), and deliver certification of their
destruction to the Company, unless by a written order, signed by two Officers of
the Company, the Company shall direct that a copy of the cancelled Notes be
returned to it. Certification of the destruction of all cancelled Notes shall be
delivered to the Company from time to time upon request. The Company may not
issue new Notes to replace Notes that it has redeemed or paid or that have been
delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, which date shall be at the earliest
practicable date but in all events at least five Business Days prior to the
payment date, in each case at the rate provided in the Notes and in Section 4.01
hereof. The Company shall, with the consent of the Trustee, fix or cause to be
fixed each such special record date and payment date. At least 15 days before
the special record date, the Company (or the Trustee, in the name of and at the
expense of the Company) shall mail to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be
paid.
Section 2.13. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and if
so, the Trustee shall use the CUSIP number in notices of redemption, exchange or
offers to purchase as a convenience to Holders; provided that no representation
shall be deemed to be made by the Trustee as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Notes, and that reliance may be
placed only on the other identification numbers printed on the Notes. The
Company shall promptly notify the Trustee of any change in the CUSIP number.
Section 2.14. Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each Interest Payment Date
and Maturity Date, the Company shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or Maturity Date, as the case may be, in a timely
manner which permits the Paying Agent to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be.
Section 2.15. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer and
subject to Section 2.12, the Company, the Trustee, any Paying Agent and any
Registrar may deem and treat the Person in whose name any Note shall be
registered upon the register of Notes kept by the Registrar as the absolute
owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of the ownership or other writing thereon made by
anyone other than the Company and any Registrar) for the purpose of receiving
payments of principal of or interest on such Note and for all other purposes;
and none of the Company, the Trustee, any Paying Agent or any Registrar shall be
affected by any notice to the contrary.
36
Section 2.16. Record Date.
The record date for purposes of determining the identity of Holders
entitled to vote or consent to any action by vote or consent authorized or
permitted under this Indenture shall be the later of (i) 30 days prior to the
first solicitation of such consent or (ii) the date of the most recent list of
Holders furnished to the Trustee, if applicable, pursuant to Section 2.05
hereto.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
(a) If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days (unless a shorter period is acceptable to the Trustee) but not
more than 60 days before a redemption date, an Officers' Certificate setting
forth (i) the Section of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
(b) If the Company is required to make an offer to redeem Notes
pursuant to the provisions of Sections 3.09 or 4.14 hereof, it shall furnish to
the Trustee at least 30 days but not more than 60 days before a redemption date,
an Officers' Certificate setting forth (i) the Section of this Indenture
pursuant to which the redemption shall occur, (ii) the redemption date, (iii)
the principal amount of Notes to be redeemed, (iv) the redemption price and (v)
further setting forth a statement to the effect that (a) the Company or one of
its Subsidiaries has effected an Asset Disposition and the conditions set forth
in Section 4.10 have been satisfied or (b) a Change of Control has occurred and
the conditions set forth in Section 4.14 have been satisfied, as applicable.
Section 3.02. Selection of Notes to Be Redeemed.
In the case of any partial redemption, selection of the Notes for
redemption will be made by the Trustee on a pro rata basis, by lot or by such
other method as the Trustee in its sole discretion shall deem to be fair and
appropriate. Notes may be redeemed in part in multiples of $1.00 principal
amount only.
Section 3.03. Notice of Redemption.
--------------------
(a) Subject to the provisions of Section 3.09 hereof, at least 30
but no more than 60 days before a redemption date, the Company shall mail a
notice of redemption by first class mail, postage prepaid to each Holder whose
Notes are to be redeemed at the last address for such Holder then shown on the
Note Register.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued;
37
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption.
(b) At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; provided,
however, that the Company shall have delivered to the Trustee at least 45 days
(unless a shorter period is acceptable to the Trustee) prior to the proposed
redemption date an Officers' Certificate requesting that the Trustee give such
notice and a form of notice setting forth the information to be stated in such
notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become due and payable on the redemption
date at the redemption price plus accrued and unpaid interest, if any. A notice
of redemption may not be conditional.
Section 3.05. Deposit of Redemption Price.
(a) On or prior to 11:00 a.m., New York City time, on the
redemption date, the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and accrued interest on
all Notes to be redeemed on that date. The Trustee or the Paying Agent shall
promptly, and in any event within two Business Days after the redemption date,
return to the Company any money deposited with the Trustee or the Paying Agent
by the Company in excess of the amounts necessary to pay the redemption price
of, and accrued interest on, all Notes to be redeemed.
(b) On and after the redemption date, interest ceases to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest Record Date but on or prior to the related Interest
Payment Date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid and, to the extent lawful, on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
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Section 3.07. Optional Redemption.
(a) On and after March 1, 2008, the Notes will be redeemable, at
the Company's option, in whole at any time or in part from time to time, upon
not less than 30 nor more than 60 days' prior notice, at the following
redemption prices (expressed in percentages of principal amount), if redeemed
during the 12-month period commencing March 1 of the years set forth below, plus
accrued and unpaid interest to the redemption date (subject to the right of
holders of record on the relevant record date to receive interest due on the
relevant Interest Payment Date):
REDEMPTION
YEAR PRICE
------------------------------------------------ ----------
2008.............................................. 105.000%
2009.............................................. 102.500%
2010 and thereafter............................... 100.000%
(b) Prior to March 1, 2008, the Company may redeem the Notes, at
its option, in whole at any time or in part from time to time, upon not less
than 30 nor more than 60 days' prior notice, at a redemption price equal to 100%
of the principal amount of the Notes redeemed plus the Applicable Premium as of,
and accrued and unpaid interest to, the applicable redemption date (subject to
the right of the holders of record on the relevant Record Date to receive
interest due on the relevant Interest Payment Date).
(c) Any prepayment pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
Except as set forth in Sections 4.10 and 4.14, the Company is not
required to make mandatory redemption or sinking fund payments prior to the
maturity of the Notes.
Section 3.09. Offer to Purchase by Application of Excess Proceeds.
(a) In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence a Net Proceeds Offer it shall follow the
procedures specified below:
(1) The Net Proceeds Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the
extent that a longer period is required by applicable law (the "Offer
Period"). No later than five Business Days after the termination of the
Offer Period (the "Purchase Date"), the Company shall purchase the
principal amount of Notes required to be purchased pursuant to Section
4.10 hereof (the "Offer Amount") or, if less than the Offer Amount has
been tendered, all Notes tendered in response to the Net Proceeds Offer.
(2) If the Purchase Date is on or after a Record Date and on or
before the related Interest Payment Date, any accrued interest shall be
paid to the Person under whose name a Note is registered at the close of
business on such Record Date, and no additional interest shall be payable
to Holders who tender Notes pursuant to the Net Proceeds Offer.
(3) Upon the commencement of any Net Proceeds Offer, the Company
shall send, by first class mail, a notice to each Holder, with a copy to
the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Net
Proceeds Offer. The notice, which shall govern the terms of the Net
Proceeds Offer, shall state:
39
(A) that the Net Proceeds Offer is being made pursuant to
this Section 3.09 and Section 4.10 hereof and the length of time the
Net Proceeds Offer shall remain open;
(B) the Offer Amount (and the Payment Amount, if different),
the Offered Price, the Pari Passu Indebtedness Price (if any) and
the Purchase Date;
(C) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(D) that any Note accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Purchase
Date;
(E) that Holders electing to have a Note purchased pursuant
to any Net Proceeds Offer shall be required to surrender the Note,
with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified
in the notice at least three days before the Purchase Date;
(F) that Holders shall be entitled to withdraw their
election if the Company, depositary or Paying Agent, as the case may
be, receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is
withdrawing his election to have the Note purchased;
(G) if the aggregate Pari Passu Indebtedness Price paid to
holders of Pari Passu Indebtedness is less than the pro rata portion
of the Payment Amount allocable to such Pari Passu Indebtedness,
then such shortfall shall be used to purchase Notes validly tendered
and not withdrawn in excess of the pro rata portion of the Payment
Amount allocable to the Notes;
(H) that, if the aggregate Offered Price of Notes validly
tendered and not withdrawn by Holders of Notes thereof exceeds the
pro rata portion of the Payment Amount allocable to the Notes (as
may be increased in accordance with clause (G) above) the Company
shall select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Company so that
only Notes in denominations of $1.00, or integral multiples thereof,
shall be purchased); and
(I) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered.
(4) On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the pro rata portion of the Payment Amount of Notes or portions
thereof tendered pursuant to the Net Proceeds Offer or, if less than the
pro rata portion of the Payment Amount has been tendered, all Notes or
portions thereof tendered, and deliver to the Trustee an Officers'
Certificate stating that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section 3.09.
The Company, depositary or Paying Agent, as the case may be, shall
promptly (but in any case not later than five days after the Purchase
Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Note tendered by such Holder and accepted by the
Company for purchase, and the Company shall promptly issue a new Note, and
the Trustee shall authenticate and mail or deliver such new Note to such
40
Holder equal in principal amount to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Net Proceeds Offer on the Purchase Date.
(b) Other than as specifically provided in this Section 3.09, any
redemption pursuant to this Section 3.09 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
(a) The Company shall pay the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes and
in this Indenture. Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than the Company or a
Guarantor, holds as of 11:00 a.m. New York City time on the due date money
deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due. Such
Paying Agent shall return to the Company, no later than five days following the
date of payment, any money (including accrued interest paid by the Company) that
exceeds such amount of principal, premium, if any, and interest paid on the
Notes.
(b) The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to the
extent lawful.
Section 4.02. Maintenance of Office or Agency.
(a) The Company shall maintain in the Borough of Manhattan, in the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee or Registrar) where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company shall give prior written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
(b) The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, in the City of New York for such purposes. The Company
shall give prior written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
(c) The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
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Section 4.03. Reports.
From and after the Issue Date, so long as the Notes are outstanding,
unless the Company or Parent is subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act or otherwise complies with such reporting
requirements, the Company will provide to the Trustee and to the Holders on a
site, which may be password-protected, on Xxxxxxxxxx.xxx or another similar
website to which Holders are given access or the Company's website, the
following information, within the timeframes indicated, that would be required
to be contained in a filing with the Commission:
(a) Within 100 days following the end of each fiscal year, the
Company will provide information which complies in all material respects with
the following Form 10-K items:
(1) Item 1. Business;
(2) Item 2. Properties;
(3) Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations;
(4) Item 8. Financial Statements and Supplementary Data; and
(5) Item 10. Directors, Executive Officers and Corporate
Governance.
(b) Within 50 days following the end of each of the first three
fiscal quarters of each fiscal year, the Company will provide information which
complies in all material respects with the following Form 10-Q items:
(1) Part I, Item 1. Financial Statements; and
(2) Part I, Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations.
(c) Within four Business Days following the occurrence of a
reportable event, the Company will provide information which complies in all
material respects with the following 8-K items:
(1) Item 1.01. Entry into a Material Definitive Agreement;
(2) Item 1.02. Termination of a Material Definitive Agreement;
(3) Item 1.03. Bankruptcy or Receivership;
(4) Item 2.01. Completion of Acquisition or Disposition of Assets;
(5) Item 5.01. Changes in Control of Registrant;
(6) Item 5.02(a)-(d). Departure of Directors or Certain Officers;
Election of Directors; Appointment of Certain Officers; and
(7) Item 5.03. Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year.
42
(d) In addition, for so long as any Notes remain outstanding, the
Company shall furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
(e) If at any time Parent holds no material assets other than
cash, Cash Equivalents and the Capital Stock of the Company or any other direct
or indirect parent of the Company (and performs the related incidental
activities associated with such ownership) and would comply with the
requirements of Rule 3-10 of Regulation S-X promulgated by the SEC (or any
successor provision), as confirmed to the Trustee in an Officer's Certificate,
the reports, information and other documents required to be furnished to Holders
of the Notes pursuant to this covenant may, at the option of the Company, be
furnished by and be those of Parent rather than the Company.
(f) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates). The Trustee is under no
duty to examine such reports, information or documents to ensure compliance with
the provisions of this Indenture or to ascertain the correctness or otherwise of
the information or the statements contained therein. The Trustee is entitled to
assume such compliance and correctness unless a Responsible Officer of the
Trustee is informed otherwise.
Section 4.04. Compliance Certificates.
(a) Each of the Company and each Guarantor shall deliver to the
Trustee, within 90 days after the end of each fiscal year, an Officers'
Certificate signed by its principal executive officer, principal financial
officer or principal accounting officer stating that a review of the activities
of the Company and its Subsidiaries or such Guarantor, as the case may be,
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether each has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge each has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action each is taking or proposes to take with respect thereto).
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, as confirmed to the
Trustee in an Officer's Certificate, the year-end financial statements delivered
pursuant to Section 4.03 above shall be accompanied by a written statement of
(x) the Company's independent public accountants (who shall be a firm of
established national reputation) that in making the examination necessary for
certification of such financial statements nothing has come to their attention
which would lead them to believe that the Company has violated any provisions of
Article 4, 5 or 6 of this Indenture insofar as they relate to accounting matters
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of any
such violation and (y) if any Restricted Subsidiary's or Guarantor's financial
statements are not prepared on a consolidated basis with the Company's, such
Restricted Subsidiary's or Guarantor's independent public accountants (who shall
be a firm of established national reputation) that in making the examination
necessary for certification of such financial statements nothing has come to
their attention which would lead them to believe that any of the Restricted
Subsidiaries or Guarantors is in Default under this Indenture or, if any such
Default has occurred, specifying the nature and period of existence thereof, it
43
being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company and each of the Guarantors shall, so long as any
of the Notes are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of (i) any Default or Event of Default or (ii) any event of
default under any other mortgage, indenture or instrument relating to
Indebtedness to which the Company is a party, an Officers' Certificate
specifying such Default, Event of Default or event of default and what action
the Company or such Guarantor, as the case may be, is taking or proposes to take
with respect thereto.
(d) The Company and each of the Guarantors shall also comply with
TIA ss. 314(a)(4).
(e) Except with respect to receipt of Note payments when due and
any Default or Event of Default information contained in the Officer's
Certificate delivered to it pursuant to this Section 4.04, the Trustee shall
have no duty to review, ascertain or confirm the Company's compliance with, or
the breach of any representation, warranty of covenant made in this Indenture.
Section 4.05. Taxes.
The Company and each of the Guarantors shall pay, and shall cause
each of their respective Subsidiaries to pay, prior to delinquency, all material
taxes, assessments, and governmental levies except as contested in good faith
and by appropriate proceedings.
Section 4.06. Stay, Extension and Usury Laws.
Each of the Company and the Guarantors covenants (to the extent that
it may lawfully do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture (including,
but not limited to, the payment of the principal of or interest on the Notes);
and the Company and each Guarantor (to the extent that they may lawfully do so)
hereby expressly waive all benefit or advantage of any such law, and covenant
that they shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
Section 4.07. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries, directly or indirectly, to:
(a) declare or pay any dividend or make any distribution on or in
respect of Capital Stock of the Company (including any payment in connection
with any merger or consolidation involving the Company or any of its Restricted
Subsidiaries) except dividends or distributions payable in Capital Stock (other
than Disqualified Stock) of the Company;
(b) purchase, redeem, retire or otherwise acquire for value any
Capital Stock of the Company held by Persons other than the Company or a
Restricted Subsidiary of the Company;
44
(c) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Subordinated Obligations;
(d) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Opco Notes; or
(e) make any Investment (other than a Permitted Investment) in any
Person
(any such dividend, distribution, purchase, redemption, repurchase, defeasance,
other acquisition, retirement or Investment as described in preceding clauses
(a) through (d) being referred to as a "Restricted Payment"), if at the time the
Company or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company is not able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.09(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments declared or made subsequent to the Issue Date would
exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the first day of the
first fiscal quarter beginning after the Issue Date to the end of
the most recent fiscal quarter ending prior to the date of such
Restricted Payment as to which financial results are available (but
in no event ending more than 135 days prior to the date of such
Restricted Payment) (or, in case such Consolidated Net Income shall
be a deficit, minus 100% of such deficit);
(B) the aggregate net proceeds received by the Company from
the issue or sale of its Capital Stock (other than Disqualified
Stock) or other capital contributions subsequent to the Issue Date
(other than net proceeds received from an issuance or sale of such
Capital Stock to a Subsidiary of the Company or an employee stock
ownership plan or similar trust of the Company or a Subsidiary of
the Company); provided, however, that the value of any non-cash net
proceeds shall be as determined by the Board of Directors in good
faith, except that in the event the value of any non-cash net
proceeds shall be $5.0 million or more, the value shall be as
determined in writing by an independent investment banking firm of
nationally recognized standing;
(C) the amount by which Indebtedness of the Company or any
Restricted Subsidiary is reduced on the Company's balance sheet upon
the conversion or exchange (other than by a Restricted Subsidiary of
the Company) subsequent to the Issue Date of any Indebtedness of the
Company Incurred subsequent to the Issue Date which is convertible
or exchangeable for Capital Stock of the Company (less the amount of
any cash, or other property, distributed by the Company upon such
conversion or exchange); and
(D) the amount equal to the net reduction in Investments
(other than Permitted Investments) made after the Issue Date by the
Company or any of its Restricted Subsidiaries in any Person
resulting from (i) repurchases or redemptions of such Investments by
such Person, proceeds realized upon the sale of such Investment to
an unaffiliated purchaser, repayments of loans or advances or other
transfers of assets by such Person to the Company or any Restricted
Subsidiary of the Company or (ii) the redesignation of Unrestricted
45
Subsidiaries as Restricted Subsidiaries (valued, in the case of this
clause (ii), as provided in the definition of "Investment") not to
exceed the amount of Investments previously included in the
calculation of the amount of Restricted Payments; provided, however,
that no such amount shall be included under this clause (D) to the
extent it is already included in Consolidated Net Income.
The provisions of the immediately preceding paragraph shall not prohibit:
(4) any purchase or redemption of Capital Stock of the Company or
Subordinated Obligations made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Capital Stock (other than
Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary or an employee stock ownership plan or similar trust) of the
Company; provided, however, that the net proceeds from such sale shall be
excluded from clause (3)(B) of the immediately preceding paragraph;
(5) any purchase or redemption of Subordinated Obligations made by
exchange for, or out of the proceeds of the substantially concurrent sale
of, Subordinated Obligations in compliance with Section 4.09;
(6) dividends paid within 60 days after the date of declaration if
at such date of declaration such dividend would have complied with this
covenant;
(7) payments to Parent to permit Parent, and which are used by
Parent, to redeem Capital Stock of Parent held by officers, directors or
employees of Parent, the Company or any of its Subsidiaries (or their
transferees, estates or beneficiaries under their estates); provided,
however, that the aggregate cash consideration paid for all such
redemptions shall not exceed $1.0 million during any calendar year (with
any unused amounts in any calendar year being carried over to succeeding
calendar years);
(8) the payment of any dividend by a Restricted Subsidiary to the
holders of its Capital Stock on a pro rata basis;
(9) repurchases of Capital Stock deemed to occur upon exercise of
stock options if such Capital Stock represents a portion of the exercise
price of such options;
(10) cash payments in lieu of the issuance of fractional shares in
connection with the exercise of warrants, options or other securities
convertible into or exchangeable for Capital Stock of the Company;
provided, however, that any such cash payment shall not be for the purpose
of evading the limitation of the covenant described under this subheading
(as determined in good faith by the Board of Directors of the Company);
(11) to the extent constituting Restricted Payments, the payments
set forth Section 4.11(9) and (10);
(12) the payment of dividends by the Company to Parent for the
purpose of enabling Parent to make cash interest, principal, and premium,
if any, payments as and when required on the Holdco Notes; provided that
such dividends shall be made by the Company no earlier than five Business
Days prior to the date such amounts are required to be paid on the Holdco
Notes;
(13) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of the Holdco Notes, including through
an exchange, or the payment of dividends by the Company to Parent for such
46
purpose; provided that such dividends shall be made by the Company no
earlier than five Business Days prior to the date such amounts are
scheduled to be paid on the Holdco Notes;
(14) the making of other Restricted Payments not to exceed $10.0
million in the aggregate;
(15) any transactions contemplated by the Exchange Agreement; and
(16) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of OpCo Notes for an amount not to
exceed the sum of (a) $5.0 million and (b) any unused portion of the
amount specified in clause (8) of the definition of Permitted Investments.
provided, however, that no Default shall have occurred or be continuing at the
time of any such Restricted Payment or as a result thereof. In determining the
amount of Restricted Payments permissible under this covenant, amounts expended
pursuant to clauses (3), (4) and (10) of this paragraph shall be included in the
calculation of the amount of Restricted Payments and amounts expended pursuant
to the other clauses of this Section shall be excluded in the calculation of the
amount of Restricted Payments.
For purposes of determining compliance with the foregoing covenant,
Restricted Payments may be made with cash or non-cash assets; provided that any
Restricted Payment made other than in cash shall be valued at the Fair Market
Value of the assets so utilized in making such Restricted Payment; provided,
further, that (i) in the case of any Restricted Payment made with Capital Stock
or Indebtedness, such Restricted Payment shall be deemed to be made in an amount
equal to the greater of the Fair Market Value thereof and the liquidation
preference (if any) or principal amount of the Capital Stock or Indebtedness, as
the case may be, so utilized, and (ii) in the case of any Restricted Payment
made with non-cash assets in an aggregate amount in excess of $5.0 million, a
written opinion as to the fairness of the valuation thereof (as determined by
the Company) for purposes of determining compliance with Section 4.07 hereof
shall be issued by an independent investment banking firm of national standing.
Section 4.08. Limitation on Distributions from Restricted Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligation owed to the Company;
(2) make any loans or advances to the Company; or
(3) transfer any of its property or assets to the Company except
(in each case) for such encumbrances or restrictions existing under or by
reason of:
(a) any encumbrance or restriction pursuant to an agreement
in effect at or entered into on the Issue Date;
(b) any encumbrance or restriction under the First Lien
Documents or the Second Lien Documents;
47
(c) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness issued by such Restricted Subsidiary on or prior to the
date on which such Restricted Subsidiary was acquired by the Company
and outstanding on such date (other than Indebtedness issued in
anticipation of, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary of the Company or was acquired by the
Company);
(d) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement evidencing
Indebtedness Incurred without violation of this Indenture or
effecting a refinancing of Indebtedness issued pursuant to an
agreement referred to in clauses (a), (b), (c) or this clause (d) or
contained in any amendment to an agreement referred to in clauses
(a), (b), (c) or this clause (d); provided, however, that the
encumbrances and restrictions with respect to such Restricted
Subsidiary contained in any of such agreement, refinancing agreement
or amendment, taken as a whole, are no less favorable to Holders of
the Notes in any material respect, as determined in good faith by
the Board of Directors of the Company, than encumbrances and
restrictions with respect to such Restricted Subsidiary contained in
agreements in effect at, or entered into on, the Issue Date;
(e) in the case of clause (3) of this Section 4.08, any
encumbrance or restriction (A) that restricts in a customary manner
the subletting, assignment or transfer of any property or asset that
is a lease, license, conveyance or contract or similar property or
asset, (B) by virtue of any transfer of, agreement to transfer,
option or right with respect to, or Lien on, any property or assets
of the Company or any Restricted Subsidiary not otherwise prohibited
by this Indenture, (C) that is included in a licensing agreement to
the extent such restrictions limit the transfer of the property
subject to such licensing agreement or (D) arising or agreed to in
the ordinary course of business and that does not, individually or
in the aggregate, detract from the value of property or assets of
the Company or any of its Restricted Subsidiaries in any manner
material to the Company or any such Restricted Subsidiary;
(f) in the case of clause (3) of this Section 4.08,
restrictions contained in security agreements, mortgages or similar
documents securing Indebtedness of a Restricted Subsidiary to the
extent such restrictions restrict the transfer of the property
subject to such security agreements;
(g) in the case of clause (3) of this Section 4.08, any
instrument governing or evidencing Indebtedness of a Person acquired
by the Company or any Restricted Subsidiary of the Company at the
time of such acquisition, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person,
other than the Person so acquired; provided, however, that such
Indebtedness is not Incurred in connection with or in contemplation
of such acquisition;
(h) any restriction with respect to a Restricted Subsidiary
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets
of such Restricted Subsidiary pending the closing of such sale or
disposition;
48
(i) customary provisions in joint venture agreements and
other similar agreements (in each case relating solely to the
respective joint venture or similar entity or the Capital Stock
thereof); and
(j) encumbrances or restrictions arising or existing by
reason of applicable law.
Section 4.09. Limitation on Incurrence of Indebtedness.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, Incur any Indebtedness; provided, however, that the
Company or any Subsidiary Guarantor may Incur Indebtedness, and any Restricted
Subsidiary may Incur Acquired Indebtedness, if on the date thereof the
Consolidated Leverage Ratio would be less than 5.5:1.
(b) Notwithstanding the foregoing paragraph (a), the Company and,
as applicable, its Restricted Subsidiaries may Incur the following Indebtedness:
(1) Indebtedness of the Company and the Subsidiary Guarantors
Incurred pursuant to one or more Credit Facilities in an aggregate
principal amount not to exceed $93.5 million at any time outstanding under
this clause (1) (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company and its
Restricted Subsidiaries thereunder), less the aggregate of all net
proceeds of Asset Dispositions applied to repay any such Indebtedness
(and, in the case of a revolving credit facility, to effect a
corresponding reduction in the commitments to advance loans thereunder);
(2) Indebtedness of the Company and its Restricted Subsidiaries
represented by Capitalized Lease Obligations, mortgage financings or
purchase money obligations, in each case Incurred for the purpose of
financing all or any part of the purchase price or cost of construction or
improvement of property or Incurred to refinance any such purchase price
or cost of construction or improvement, in each case Incurred no later
than 365 days after the date of such acquisition or the date of completion
of such construction or improvement and any refinancing of the foregoing;
provided, however, that the aggregate principal amount of all Indebtedness
Incurred pursuant to this clause (2) shall not exceed $5.0 million at any
time outstanding;
(3) Indebtedness of the Company owing to and held by any
Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by
the Company or any Restricted Subsidiary; provided, however, that any
subsequent issuance or transfer of any Capital Stock or any other event
which results in any such latter Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of any such Indebtedness
(except to the Company or any Restricted Subsidiary) shall be deemed, in
each case, to constitute the Incurrence of such Indebtedness by the
obligor not permitted by this clause (3);
(4) Indebtedness represented by (v) the Notes issued on the Issue
Date, (w) the Note Guarantees, (x) Existing Indebtedness and (y) any
Refinancing Indebtedness Incurred in respect of any Indebtedness described
in this clause (4) or Incurred pursuant to paragraph (a) above or clause
(8) below;
(5) Indebtedness (A) in respect of performance bonds, bankers'
acceptances and surety or appeal bonds provided by the Company or any of
its Restricted Subsidiaries to their customers in the ordinary course of
their business, (B) in respect of performance bonds or similar obligations
of the Company or any of its Restricted Subsidiaries for or in connection
with pledges, deposits or payments made or given in the ordinary course of
49
business in connection with or to secure statutory, regulatory or similar
obligations, including obligations under health, safety or environmental
obligations and (C) arising from Guarantees to suppliers, lessors,
licensees, contractors, franchises or customers of obligations (other than
Indebtedness) Incurred in the ordinary course of business;
(6) Indebtedness under Hedging Agreements; provided, however, that
such Hedging Agreements are entered into for bona fide hedging purposes of
the Company or its Restricted Subsidiaries and correspond in terms of
notional amount, duration, currencies, commodities and interest rates, as
applicable, to Indebtedness of the Company or its Restricted Subsidiaries
Incurred without violation of this Indenture or to business transactions
of the Company or its Restricted Subsidiaries on customary terms entered
into in the ordinary course of business;
(7) Indebtedness consisting of (A) Guarantees by the Company of
Indebtedness of a Restricted Subsidiary (so long as the guaranteed
Indebtedness was permitted to be Incurred by another provision of this
covenant) and (B) Guarantees by a Guarantor of Indebtedness of the Company
or any other Guarantor (so long as such guaranteed Indebtedness was
permitted to be Incurred by another provision of this covenant);
(8) the issuance of Additional Notes in exchange for outstanding
Holdco Notes at a rate not to exceed $812.5 principal amount of Additional
Notes for each $1,000 principal amount of Holdco Notes; and
(9) Indebtedness (other than Indebtedness described in clauses
(1)-(8)) in a principal amount which, when taken together with the
principal amount of all other Indebtedness Incurred pursuant to this
clause and then outstanding, will not exceed $10.0 million.
(c) The Company will not permit any Unrestricted Subsidiary to
Incur any Indebtedness other than Non-Recourse Debt.
(d) For purposes of determining compliance with this Section 4.09,
in the event that an item of Indebtedness meets the criteria of more than one of
the categories of permitted Indebtedness described in Sections 4.09(b)(1)
through (9) or is entitled to be Incurred pursuant to Section 4.09(a), the
Company shall, in its sole discretion, classify such item of Indebtedness and
may divide and classify and later reclassify all or a portion of such
Indebtedness in more than one of the types of Indebtedness described, except
that Indebtedness outstanding under the First Lien Credit Agreement on the Issue
Date shall be deemed to have been Incurred on the Issue Date under Section
4.09(b)(1).
(e) The accrual of interest, accretion or amortization of original
issue discount and the payment of interest or dividends in the form of
additional Indebtedness will be deemed not to be an Incurrence of Indebtedness
for purposes of Section 4.09.
Section 4.10. Limitation on Asset Dispositions.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Disposition at least equal to the
Fair Market Value of the shares and assets subject to such Asset
Disposition; and
50
(2) at least 75% of the consideration thereof received by the
Company or such Restricted Subsidiary is in the form of cash or Cash
Equivalents.
If the Company or any Restricted Subsidiary engages in an Asset Disposition, the
Company or such Restricted Subsidiary shall apply the Net Available Cash
therefrom within 395 days after receipt thereof (x) to the extent the Company or
any Restricted Subsidiary elects (or is required by the terms of any Secured
Indebtedness (other than the Notes)), to prepay, repay or purchase Secured
Indebtedness (and shall cause the related loan commitment (if any) to be
permanently reduced in an amount equal to the principal amount so prepaid,
repaid or purchased), (y) to the investment in or acquisition of Additional
Assets or (z) to make capital expenditures in respect of assets used or useful
in the business of the Company or a Restricted Subsidiary. The amount of Net
Available Cash not applied or invested as provided in this paragraph will
constitute "Excess Proceeds."
(b) When the aggregate amount of Excess Proceeds equals or exceeds
$10.0 million, the Company shall be required to make an offer to purchase from
all Holders and, if applicable, redeem, prepay, repay or purchase (collectively,
"redeem") (or make an offer to do so) any Pari Passu Indebtedness of the
Company, the provisions of which require the Company to redeem such Pari Passu
Indebtedness with the proceeds from any Asset Dispositions (or offer to do so),
in an aggregate principal amount of Notes and such Pari Passu Indebtedness equal
to the amount of such Excess Proceeds as follows:
(1) the Company shall (a) make an offer to purchase (a "Net
Proceeds Offer") to all Holders, and (b) redeem (or make an offer to do
so) any such other Pari Passu Indebtedness (pro rata in proportion to the
respective principal amounts of the Notes and such other Pari Passu
Indebtedness required to be redeemed), the maximum principal amount (the
"Payment Amount") of Notes and Pari Passu Indebtedness that may be
redeemed out of the amount of such Excess Proceeds;
(2) the offer price for the Notes shall be payable in cash in an
amount equal to 100% of the principal amount of the Notes tendered
pursuant to a Net Proceeds Offer, plus accrued and unpaid interest
thereon, if any, to the date such Net Proceeds Offer is consummated (the
"Offered Price"), and the redemption price for such Pari Passu
Indebtedness (the "Pari Passu Indebtedness Price") shall be as set forth
in the related documentation governing such Indebtedness;
(3) if the aggregate Pari Passu Indebtedness Price paid to holders
of Pari Passu Indebtedness is less than the pro rata portion of the
Payment Amount allocable to such Pari Passu Indebtedness, then such
shortfall shall be used to purchase Notes validly tendered and not
withdrawn in excess of the pro rata portion of the Payment Amount
allocable to the Notes;
(4) if the aggregate Offered Price of Notes validly tendered and
not withdrawn by Holders of Notes thereof exceeds the pro rata portion of
the Payment Amount allocable to the Notes (as may be increased in
accordance with clause (3) above), Notes to be purchased shall be selected
on a pro rata basis; and
(5) upon completion of such Net Proceeds Offer in accordance with
the foregoing provisions, the amount of Excess Proceeds with respect to
which such Net Proceeds Offer was made shall be deemed to be zero.
To the extent that the sum of the aggregate Offered Price of Notes
tendered pursuant to a Net Proceeds Offer and the aggregate Pari Passu
Indebtedness Price paid to the holders of such Pari Passu Indebtedness is less
than the Payment Amount relating thereto, such shortfall may be used by the
Company for general corporate purposes as permitted under this Indenture.
51
Any such Net Proceeds Offer shall be conducted in accordance with
Section 3.09 hereof.
For the purposes of this covenant, the following will be deemed to
be cash: (x) the assumption by the transferee of senior Indebtedness of the
Company or senior Indebtedness of any Restricted Subsidiary of the Company and
the release of the Company or such Restricted Subsidiary from all liability on
such senior Indebtedness in connection with such Asset Disposition and (y)
securities received by the Company or any Restricted Subsidiary of the Company
from the transferee that are promptly (and in any event within 90 days following
the Asset Disposition) converted by the Company or such Restricted Subsidiary
into cash.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Indenture. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Company will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under this Indenture by virtue thereof.
Section 4.11. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or conduct any transaction
or series of related transactions (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with or for the
benefit of any Affiliate of the Company, other than a Wholly-Owned Subsidiary
(an "Affiliate Transaction") unless:
(a) the terms of such Affiliate Transaction are no less favorable
to the Company or such Restricted Subsidiary, as the case may be, than those
that could be obtained at the time of such transaction in arm's length dealings
with a Person who is not such an Affiliate;
(b) in the event such Affiliate Transaction involves an aggregate
amount in excess of $2.5 million, the terms of such transaction have been
approved by a majority of the members of the Board of Directors of the Company
and by a majority of the disinterested members of such Board (and such majority
or majorities, as the case may be, determines that such Affiliate Transaction
satisfies the criteria in (a) above); and
(c) in the event such Affiliate Transaction involves an aggregate
amount in excess of $5.0 million, the Company has received a written opinion
from an independent investment banking firm of nationally recognized standing
that such Affiliate Transaction is fair to the Company or such Restricted
Subsidiary, as the case may be, from a financial point of view.
The foregoing paragraph shall not apply to:
(1) any Restricted Payment permitted to be made pursuant to
Section 4.07;
(2) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, or any stock options and stock ownership plans
for the benefit of employees, officers and directors, consultants and
advisors approved by the Board of Directors of the Company;
(3) loans or advances to employees in the ordinary course of
business of the Company or any of its Restricted Subsidiaries in aggregate
amount outstanding not to exceed $2.0 million at any time;
52
(4) any transaction between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries so long as the Affiliate
(other than the Company or another Restricted Subsidiary) owns any Capital
Stock in any such Restricted Subsidiary;
(5) indemnification agreements with, and the payment of fees and
indemnities to, directors, officers and employees of the Company and its
Restricted Subsidiaries, in each case in the ordinary course of business;
(6) transactions pursuant to agreements in existence on the Issue
Date;
(7) any employment, non-competition or confidentiality agreements
entered into by the Company or any of its Restricted Subsidiaries with its
employees in the ordinary course of business;
(8) the issuance of Capital Stock of the Company (other than
Disqualified Stock);
(9) the entering into of a tax sharing agreement, or payments
pursuant thereto, between the Company and/or one or more Restricted
Subsidiaries, on the one hand, and Parent or any other Person with which
the Company or such Restricted Subsidiaries are required or permitted to
file a consolidated, combined or unitary tax return or with which the
Company or such Restricted Subsidiaries are part of a consolidated
combined or unitary group for tax purposes, on the other hand, which
payments by the Company and the Restricted Subsidiaries are not in excess
of the tax liabilities that would have been payable by them on a
stand-alone basis; and
(10) payments by the Company to or on behalf of Parent in an amount
sufficient to pay out-of-pocket legal, accounting and filing costs of
Parent actually Incurred by Parent, in any case in an aggregate amount not
to exceed $500,000 in any calendar year in which there does not exist a
Public Market and $1.0 million in any calendar year in which a Public
Market exists.
Section 4.12. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Liens (except for Permitted Liens) against any assets of the Company or any
Restricted Subsidiary.
Section 4.13. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, and the corporate, partnership or other existence of each
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and the rights
(charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any Subsidiary, if the Board of Directors of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries, taken as a whole,
and that the loss thereof is not adverse in any material respect to the Holders.
Section 4.14. Change of Control.
(a) Upon the occurrence of a Change of Control each Holder will
have the right to require the Company to repurchase all or any part of such
Holder's Notes at a purchase price in cash equal to 101% of the principal amount
53
thereof plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of holders of record on the relevant record date to
receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, the Company
shall mail a notice to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder's Notes at a
purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase (subject to
the right of holders of record on a record date to receive interest on the
relevant Interest Payment Date);
(2) the repurchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
(3) the procedures determined by the Company, consistent with this
Indenture, that a Holder must follow in order to have its Notes purchased.
(c) Holders electing to have a Note repurchased will be required
to surrender the Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Company at the address
specified in the notice at least 10 Business Days prior to the repurchase date.
Holders will be entitled to withdraw their election if the Trustee or the
Company receives not later than three Business Days prior to the repurchase
date, a telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Note which was delivered for
repurchase by the Holder and a statement that such Holder is withdrawing his
election to have such Note purchased.
(d) On the repurchase date, all Notes repurchased by the Company
under this Section 4.14 shall be delivered by the Trustee for cancellation, and
the Company shall pay the repurchase price plus accrued and unpaid interest, if
any, to the Holders entitled thereto.
(e) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.14(e). To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Indenture, the Company will comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations described in this Indenture by virtue thereof.
Section 4.15. Payments for Consent.
The Company will not, and will not permit any of its Subsidiaries or
Affiliates to, directly or indirectly, pay or cause to be paid any consideration
(whether in the form of cash, securities or any other form) to or for the
benefit of any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to be paid to all Holders of the Notes and
is paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
54
ARTICLE 5
SUCCESSORS
Section 5.01. Limitations on Merger, Consolidation or Sale of Assets.
(a) The Company shall not directly or indirectly consolidate with or
merge with or into, or convey, transfer or lease all or substantially all of its
assets, whether in a single or series of related transactions, to, any Person
(other than a Guarantor) and the Company shall not permit any one or more
Restricted Subsidiaries directly or indirectly to consolidate or merge with or
into, or convey, transfer or lease all or substantially all of their or its
assets, whether in a single or series of related transactions, to any Person
(other than a Guarantor) if it would involve all or substantially all of the
consolidated assets of the Company, unless:
(1) the resulting, surviving or transferee Person (the "Successor
Company") shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia and the Successor Company (if not the Company) shall expressly
assume, (a) by supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of the
Company under the Notes and this Indenture and (b) by amendment,
supplement or other instrument (in form and substance reasonably
satisfactory to the Trustee and the Collateral Agent), executed and
delivered to the Trustee, all obligations of the Company under the
Collateral Agreements, and in connection therewith shall cause such
instruments to be filed and recorded in such jurisdictions and take such
other actions as may be required by applicable law to perfect or continue
the perfection of the Lien created under the Collateral Agreements on the
Collateral owned by or transferred to the surviving entity;
(2) immediately after giving effect to such transaction (and
treating any Indebtedness that becomes an obligation of the Successor
Company or any Restricted Subsidiary of the Successor Company as a result
of such transaction as having been Incurred by the Successor Company or
such Restricted Subsidiary at the time of such transaction), no Default
shall have occurred and be continuing;
(3) immediately after giving effect to such transaction, the
Successor Company would be able to Incur at least an additional $1.00 of
Indebtedness pursuant to Section 4.09(a); and
(4) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
(b) No Guarantor (other than any Guarantor whose Subsidiary
Guarantee is to be released in accordance with the terms of the Subsidiary
Guarantee and this Indenture in connection with any transaction complying with
the provisions of Section 4.10) shall consolidate with or merge with or into or
convey, transfer or lease all or substantially all of its assets to any Person
(other than the Company or any other Guarantor) unless:
(1) the resulting, surviving or transferee Person (the "Successor
Guarantor") shall be a corporation organized and existing under the laws
of the United States of America, any State thereof or the District of
Columbia and the Successor Guarantor (if not such Guarantor) shall
expressly assume, (a) by supplemental indenture, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the obligations of
such Guarantor under the Notes, this Indenture and the Registration Rights
55
Agreement and (b) by amendment, supplement or other instrument (in form
and substance reasonably satisfactory to the Trustee and the Collateral
Agent), executed and delivered to the Trustee, all obligations of the
Guarantor under the Collateral Agreements, and in connection therewith
shall cause such instruments; to be filed and recorded in such
jurisdictions and take such other actions as may be required by applicable
law to perfect or continue the perfection of the Lien created under
Collateral Agreements on the Collateral owned by or transferred to the
surviving entity;
(2) immediately after giving effect to such transaction (and
treating any Indebtedness that becomes an obligation of the Successor
Guarantor or any Restricted Subsidiary of the Successor Guarantor as a
result of such transaction as having been Incurred by the Successor
Guarantor or such Restricted Subsidiary at the time of such transaction),
no Default shall have occurred and be continuing; and
(3) the Guarantor shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
Section 5.02. Successor Company Substituted.
The Successor Company or the Successor Guarantor, as the case may
be, will succeed to, and be substituted for, and may exercise every right and
power of, the Company or a Guarantor, as applicable, under this Indenture, but,
in the case of a lease of all or substantially all its assets, the Company or
the Guarantor, as the case may be, will not be released from the obligation to
pay the principal of and interest on the Notes or its Note Guarantee, as
applicable.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
(a) Each of the following constitutes an Event of Default ("Event
of Default") under this Indenture:
(1) a default in any payment of interest on any Note when due,
continued for 30 days;
(2) a default in the payment of principal of any Note when due at
its Stated Maturity, upon optional redemption, upon required repurchase,
upon declaration or otherwise;
(3) the failure by the Company to comply with its obligations
under Section 5.01;
(4) the failure by the Company to comply for 30 days after notice
with any of its obligations under Sections 3.09, 4.03, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12 or 4.14 hereof (in each case, other than a failure to
purchase Notes, which shall constitute an Event of Default under clause
(2) above);
(5) the failure by the Company or any Guarantor to comply for 45
days after notice with its other agreements contained in this Indenture;
56
(6) Indebtedness of Parent, the Company or any Restricted
Subsidiary is not paid within any applicable grace period after the due
date thereof or is accelerated by the holders thereof because of a default
and the total amount of all such Indebtedness unpaid or accelerated
exceeds $10.0 million;
(7) any judgment or decree for the payment of money in excess of
$10.0 million (to the extent not covered by insurance) is rendered against
Parent, the Company or a Significant Subsidiary and such judgment or
decree shall remain undischarged or unstayed for a period of 60 days after
such judgment becomes final and non-appealable;
(8) any Note Guarantee by Parent or a Significant Subsidiary
ceases to be in full force and effect (except as contemplated by the terms
hereof) or any Guarantor that is a Significant Subsidiary denies or
disaffirms its obligations hereunder or its Note Guarantee and such
Default continues for 10 days;
(9) Parent, the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors,
(E) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it, or
(F) takes any corporate action to authorize or effect any of
the foregoing;
(10) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against Parent, the Company or any of its
Significant Subsidiaries in an involuntary case,
(B) appoints a custodian of Parent, the Company or any of
its Significant Subsidiaries or for all or substantially all of the
property of the Company or any of its Significant Subsidiaries, or
(C) orders the liquidation of Parent, the Company or any of
its Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 60 consecutive
days; and
(11) any of the Collateral Agreements at any time for any reason
ceases to be in full force and effect, or is declared null and void, or
shall cease to be effective in all material respects to give the
57
Collateral Agent, the Liens with the priority purported to be created
thereby (subject to the Intercreditor Agreement).
However, a default under clause (4) or (5) will not constitute an Event of
Default until the Trustee or the holders of 25% in principal amount of the
outstanding Notes notify the Company of the default and the Company does not
cure such default within the time specified in clause (4) or (5) after receipt
of such notice.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
clauses (9) or (10) of Section 6.01(a) with respect to Parent or the Company)
occurs and is continuing, the Trustee or the Holders of not less than 25% in
aggregate principal amount of the then outstanding Notes by notice to the
Company and (if given by the Holders) the Trustee, may declare (a "Declaration")
the unpaid principal of, and any accrued and unpaid interest on, all the Notes
to be due and payable (the "Default Amount"). Upon any such Declaration, the
Default Amount shall be due and payable immediately. If an Event of Default
specified in clauses (9) or (10) of Section 6.01(a) occurs with respect to
Parent or the Company, the Default Amount shall ipso facto become and be
immediately due and payable without any Declaration or other act on the part of
the Trustee or any Holder. The Holders of a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Trustee may
rescind any Declaration if all Events of Default then continuing (other than any
Events of Default with respect to the nonpayment of principal of or interest on
any Note which has become due solely as a result of such Declaration) have been
cured, and may waive any Default other than a Default with respect to a covenant
or provision that cannot be modified or amended without the consent of each
Holder pursuant to Section 9.02 hereof.
Section 6.03. Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee,
the Collateral Agent and the Holders may pursue any available remedy to collect
the payment of principal, premium, if any, or interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture or any
Collateral Agreement.
(b) Each of the Trustee and the Collateral Agent may maintain a
proceeding even if it does not possess any of the Notes or does not produce any
of them in the proceeding. A delay or omission by the Trustee, the Collateral
Agent or any Holder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent
permitted by law.
Section 6.04. Waiver of Past Defaults.
The Holders of at least a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may waive an existing
Default or Event of Default and its consequences, except a continuing Default or
Event of Default in the payment of the principal, premium, if any, or interest
on any Note (other than principal, premium (if any) or interest which has become
due solely as a result of a Declaration) or a Default or Event of Default that
cannot be modified or amended without the consent of the Holder of each
outstanding Note affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
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Section 6.05. Control by Majority.
The Holders of at least a majority in aggregate principal amount of
the Notes then outstanding may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or the Collateral Agent,
as the case may be, or exercising any trust or power conferred on the Trustee or
the Collateral Agent, as the case may be. However, the Trustee or the Collateral
Agent, as the case may be, may refuse to follow any direction that conflicts
with law or this Indenture, that the Trustee or the Collateral Agent, as the
case may be, determines may be unduly prejudicial to the rights of other Holders
or that may involve the Trustee or the Collateral Agent, as the case may be, in
personal liability or expense for which it is not adequately indemnified.
Section 6.06. Limitation on Suits.
(a) A Holder may pursue a remedy with respect to this Indenture or
the Notes only if:
(1) the Holder has previously given to the Trustee written notice
of a continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer, and, if requested, provide, to
the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee, in
the reasonable opinion of such Trustee, a direction inconsistent with the
request.
The preceding limitations shall not apply to a suit instituted by a Holder
for enforcement of payment of principal of, and premium, if any, or interest on,
a Note on or after the respective due dates for such prepayments set forth in
such Note.
(b) A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal, premium, if any, and interest on the
Note, on or after the respective due dates expressed in the Note, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of the Holder.
Section 6.08. Collection Suit by Trustee or Collateral Agent.
If an Event of Default specified in Section 6.01(a)(1) or (2) or an
acceleration pursuant to Section 6.02 occurs and is continuing, the Trustee or
the Collateral Agent is authorized to recover judgment (a) in its own name and
(b)(1) in the case of the Trustee, as trustee of an express trust or (2) in the
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case of the Collateral Agent, as collateral agent on behalf of each of the
Holders, in each case, against the Company or any Guarantor or any other obligor
on the Notes for the whole amount of principal, premium, if any, and accrued
interest remaining unpaid on the Notes and interest on overdue principal,
premium, if any, and, to the extent lawful, interest on overdue installments of
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including any advances made by the Trustee and the
reasonable compensation, expenses and disbursements of the Trustee, the
Collateral Agent and their respective agents and counsel and any other amounts
due the Trustee or Collateral Agent under the Collateral Agreements and Section
7.07.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee or the Collateral Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, the
Collateral Agent or their respective agents and counsel) and the Holders allowed
in any judicial proceedings relative to the Company or any Guarantor (or any
other obligor on the Notes), its creditors or its property and shall be entitled
and empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee or the Collateral Agent, and in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, the Collateral Agent, or their respective agents
and counsel, and any other amounts due the Trustee or the Collateral Agent under
the Collateral Agreements and Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, the Collateral Agent, or their respective agents and counsel, and any
other amounts due the Trustee or the Collateral Agent under the Collateral
Agreements and Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties which the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee or the Collateral Agent to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee or the Collateral Agent to vote in respect
of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
(a) If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
(1) First: to the Trustee, the Collateral Agent and their
respective agents and attorneys for amounts due under Section 7.07,
including payment of all compensation, expenses and liabilities Incurred,
and all advances made, by the Trustee or the Collateral Agent and the
costs and expenses of collection;
(2) Second: if the Holders are forced to proceed against the
Company directly without the Trustee or the Collateral Agent, to the
Holders for their collection costs;
(3) Third: to the Holders for amounts due and unpaid on the Notes
for principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the
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Notes for principal, premium, if any, and interest, respectively; and
(4) Fourth: to the Company or, to the extent the Trustee collects
any amount pursuant to Article 10 hereof from any Guarantor, to such
Guarantor, or to such party as a court of competent jurisdiction shall
direct.
(b) The Trustee may fix a record date and payment date for any
payment to Holders.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee or the Collateral Agent, as the
case may be, for any action taken or omitted by it as the Trustee or the
Collateral Agent, as the case may be, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs of
the suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee or the Collateral
Agent, as the case may be, a suit by a Holder pursuant to Section 6.07 hereof,
or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances and in the conduct
of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform only those duties as are
specifically set forth in this Indenture and the duties of the Trustee
shall be determined solely by the express provisions of this Indenture,
the Trustee need perform only those duties that are specifically set forth
in this Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture, but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine the same to determine whether or not
they conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liabilities for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
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(1) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise Incur any financial loss, liability or
expense in the performance of any of its duties hereunder or in the exercise of
any of its rights or powers if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or loss,
liability or expense is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee for any series of Notes shall be subject to
the provisions of this Section 7.01.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document
unless the Trustee has reason to believe such fact or matter is not true.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company or any Guarantor shall be
sufficient if signed by an Officer of the Company or any Guarantor.
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(f) The permissive rights of the Trustee to do certain things
enumerated in this Indenture shall not be construed as a duty and the Trustee
shall not be answerable for other than its negligence or willful default with
respect to such permissive rights.
(g) Except for (i) an Event of Default under 6.01(a)(1) or (2)
hereof, or (ii) any other event of which the Trustee has "actual knowledge,"
which event, with the giving of notice or the passage of time or both, would
constitute an Event of Default, the Trustee shall not be deemed to have notice
of any Default or Event of Default unless specifically notified in writing of
such event by the Company or the Holders of not less than 25% in aggregate
principal amount of Notes outstanding; as used herein, the term "actual
knowledge" means the actual fact or statement of knowing, without any duty to
make any investigation with regard thereto.
(h) The Trustee shall not be bound to make any inquiry or
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, note or other paper or document unless requested in writing so to
do by the holders of a majority in aggregate principal amount of the Notes of
any series affected then Outstanding; provided, however, that if the payment
within a reasonable time to the Trustee of the costs and expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security
conferred upon it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a condition
to so proceeding; and the reasonable expense of such investigation shall be paid
by the Company, or, if paid by the Trustee shall be repaid by the Company upon
demand;
(i) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by the Trustee in each of
its capacities hereunder, and each agent, custodian and other Person employed to
act hereunder;
(j) the Trustee may request that the Issuer deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded;
(k) the Trustee shall not be responsible or liable for special,
indirect, or consequential loss or damage of any kind whatsoever (including, but
not limited to, loss or profit) irrespective of whether the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of
action;
(l) the Trustee shall not be required to give any note, bond, or
surety in respect of the execution of the trusts and powers under this
Indenture; and
(m) the Trustee shall not be responsible or liable for any failure
or delay in the performance of its obligations under this Indenture arising out
of or caused, directly or indirectly, by circumstances beyond its reasonable
control, including without limitation, acts of God; earthquakes; fire; flood;
terrorism; wars and other military disturbances; sabotage; epidemics; riots;
interruptions; loss or malfunction of utilities; computer (hardware or software)
or communication services; accidents; labor disputes; acts of civil or military
authorities and governmental action.
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Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, any Guarantor
or any Affiliate of the Company or any Guarantor with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity, adequacy or
sufficiency of this Indenture, the Notes, the Note Guarantees or the Collateral
Agreements, and it shall not be accountable for the Company's use of the
proceeds from the Notes, and it shall not be responsible for any statement of
the Company in this Indenture, the Notes, the Note Guarantees, the Collateral
Agreements or any other documents in connection with the issuance of the Notes
other than the Trustee's certificate of authentication which shall be taken as a
statement of the Company and as to which the Trustee assumes no liability for
its correctness.
Beyond the exercise of reasonable care in the custody thereof and
the fulfillment of its obligations under this Indenture and the Collateral
Agreements, the Trustee shall have no duty as to any Collateral in its
possession or control or in the possession or control of any agent or bailee or
any income thereon or as to preservation of rights against prior parties or any
other rights pertaining thereto. The Trustee shall be deemed to have exercised
reasonable care in the custody of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which it accords
its own property. The Trustee shall not be responsible for filing any financing
or continuation statements or recording any documents or instruments in any
public office at any time or times or otherwise perfecting or maintaining the
perfection of any security interest in the Collateral.
The Trustee makes no representations as to and shall not be
responsible for the existence, genuineness, value, sufficiency or condition of
any of the Collateral or as to the security afforded or intended to be afforded
thereby, hereby or by any Collateral Agreement, for the validity, perfection,
priority or enforceability of the Liens or security interests in any of the
Collateral created or intended to be created by any of the Collateral
Agreements, whether impaired by operation of law or by reason of any action or
omission to act on its part hereunder, except to the extent that the release by
it of any Lien in violation of the Collateral Agreements constitutes gross
negligence or willful misconduct, for the validity or sufficiency of the
Collateral, any Collateral Agreements or any agreement or assignment contained
in any thereof, for the validity of the title of the Company or any Guarantor to
the Collateral, for insuring the Collateral or for the payment of taxes,
charges, assessments or Liens upon the Collateral or otherwise as to the
maintenance of the Collateral. The Trustee shall have no duty to ascertain or
inquire into the performance or observance of any terms of this Indenture by any
Person that is a party thereto.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Holder a notice of the
Default or Event of Default within 60 days after it occurs. Except in the case
of a Default in any payment of principal or interest on any Note, the Trustee
may withhold the notice if a committee of its officers in good faith determines
that withholding the notice is in the interest of the Holders. In addition, the
Company is required to deliver to the Trustee, within 90 days after each fiscal
year of the Company, a certificate indicating whether the signers thereof know
of any Default that occurred during the previous year. The Company shall also
deliver to the Trustee, within 30 days after the occurrence thereof, written
notice of any events which would constitute a Default.
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Section 7.06. Reports by Trustee to Holders.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall mail to the Holders a
brief report dated as of such reporting date that complies with TIA ss. 313(a)
(but if no event described in TIA ss. 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted). The Trustee
also shall comply with TIA xx.xx. 313(b), (c) and (d).
(b) A copy of each report at the time of its mailing to the
Holders shall be filed with the Commission and each stock exchange, if any, on
which the Notes are listed. The Company shall promptly notify the Trustee if and
when the Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
(a) The Company and each of the Guarantors, jointly and severally,
shall pay to the Trustee and Collateral Agent from time to time reasonable
compensation for their respective services of Trustee or Collateral Agent, as
the case may be, as agreed to between each of the Trustee and the Collateral
Agent, on the one hand, and the Company on the other. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company and each of the Guarantors, jointly and severally, shall
reimburse the Trustee and the Collateral Agent upon request for all reasonable
disbursements, advances and expenses Incurred or made by them in addition to the
compensation for their respective services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's and the
Collateral Agent's respective agents and counsel.
(b) The Company and each of the Guarantors, jointly and severally,
shall indemnify the Trustee and the Collateral Agent against any and all losses,
liabilities or expenses Incurred by them arising out of or in connection with
the acceptance or administration of their respective duties under this Indenture
or the Collateral Agreements, as the case may be, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder or under
the Collateral Agreements, as the case may be, except as set forth below in
subparagraph (d). The Trustee and the Collateral Agent shall notify the Company
and each of the Guarantors promptly of any claim for which they may seek
indemnity. Failure by the Trustee or the Collateral Agent to so notify the
Company or any Guarantor shall not relieve the Company or any of the Guarantors
of their Obligations hereunder or under the Collateral Agreements. The Trustee
and the Collateral Agent may have separate counsel and the Company and each of
the Guarantors, jointly and severally, shall pay the reasonable fees and
expenses of such counsel. Neither the Company nor any Guarantor need pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
(c) The obligations of the Company and each of the Guarantors
under this Section 7.07 shall survive the resignation or removal of the Trustee,
the satisfaction and discharge or termination of this Indenture and the
termination of the Collateral Agreements.
(d) Notwithstanding subparagraphs (a) or (b) above, neither the
Company nor any Guarantor need reimburse any expense or indemnify against any
loss or liability Incurred by the Trustee or the Collateral Agent, as the case
may be, through its own negligence, bad faith or willful misconduct.
(e) To secure the Company's and each of the Guarantor's payment
obligations in this Section, the Trustee shall have a Lien prior to the Notes on
all money or property held or collected by the Trustee or the Collateral Agent
in their respective capacities, except, in the case of the Trustee, that held in
trust to pay principal, premium, if any, and interest on particular Notes. Such
Lien shall survive the resignation or removal of the Trustee and the
satisfaction and discharge of this Indenture.
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(f) When the Trustee Incurs expenses or renders services after an
Event of Default specified in Section 6.01(a)(9) or (10) hereof occurs, the
expenses and the compensation for such services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
Section 7.08. Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(iii) a custodian, receiver or other public officer takes charge of
the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder of
such event and promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the then outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
(d) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to each Holder. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee; provided all sums owing
to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's and each of the Guarantor's obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
(e) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, any of the Guarantors or the Holders of at least 10% in principal
amount of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) If the Trustee after written request by any Holder who has
been a Holder for at least six months fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
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Section 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided that such
corporation shall be otherwise qualified and eligible under this Article Seven.
Section 7.10. Eligibility; Disqualification.
(a) There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America or any State or Territory thereof or the District of Columbia
authorized under such laws to exercise corporate trustee power, shall be subject
to supervision or examination by Federal, State, Territorial, or District of
Columbia authority and shall have a combined capital and surplus of at least
$100 million as set forth in its most recent published annual report of
condition.
(b) This Indenture shall always have a Trustee who satisfies the
requirements of TIA xx.xx. 310(a)(1), (2) and (5). The Trustee shall comply with
TIA ss. 310(b). The provisions of TIA ss. 310 shall also apply to the Company
and each of the Guarantors, as obligor of the Notes.
Section 7.11. Preferential Collection of Claims Against the Company.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein. The
provisions of TIA ss. 311 shall apply to the Company and each of the Guarantors
as obligor on the Notes.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Discharge of Liability on Securities; Defeasance.
(a) This Indenture will be discharged and will cease to be of
further effect (except as to rights of registration of transfer or exchange of
Notes, which shall survive until all Notes have been cancelled) as to all
outstanding Notes when either:
(1) all the Notes that have been authenticated and delivered
(except lost, stolen or destroyed Notes that have been replaced or paid
and Notes for whose payment money has been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from this trust) have been delivered to the Trustee
for cancellation, or
(2) (A) all Notes not delivered to the Trustee for cancellation
otherwise have become due and payable or have been called for redemption
pursuant to Section 3.07 and the Company has irrevocably deposited or
cause to be deposited with the Trustee trust funds in trust in an amount
of money sufficient to pay and discharge the entire Indebtedness
(including all principal and accrued interest) on the Notes not
theretofore delivered to the Trustee for cancellation;
(B) the Company has paid all sums payable by it under this
Indenture; and
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(C) the Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of the Notes at
maturity or on the date of redemption, as the case may be; and
(D) the Company has delivered an Officers' Certificate and an
Opinion of Counsel stating that all conditions precedent to satisfaction
and discharge have been complied with.
(b) Subject to Sections 8.01(e), 8.02 and 8.06 hereof, the Company
at any time may terminate (i) all its obligations under the Notes and this
Indenture ("legal defeasance option"), or (ii) all its obligations under
Sections 3.09, 4.03, 4.04(a), (b) and (c), 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,
4.13, 4.14, 4.15 or 5.01(a)(3) and 5.01(a)(4) and the operation of Sections
6.01(a)(4), 6.01(a)(5), 6.01(a)(6), 6.01(a)(7) and 6.01(a)(8) (as well as
6.01(a)(9) and 6.01(a)(10) hereof but only with respect to Significant
Subsidiaries) ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
(c) If the Company exercises its legal defeasance option, payment
of the Notes may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Notes may not
be accelerated because of an Event of Default specified in Sections 6.01(a)(4),
(5), (6), (7), (8), (9) (with respect to Significant Subsidiaries only) or (10)
(with respect to Significant Subsidiaries only) or because of an Event of
Default specified in Section 6.01(a)(3) resulting from the failure of the
Company to comply with Section 5.01(a)(3).
(d) Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(e) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.01, 8.04,
8.05 and 8.06 hereof and the obligations of each Guarantor under Article 10 in
respect thereof shall survive until the Notes have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 hereof and
the obligations of Guarantors under Article 10 in respect thereof shall survive.
Section 8.02. Conditions to Defeasance.
(a) The Company may exercise its legal defeasance option or its
covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations in amounts (including interest, but
without consideration of any reinvestment of such interest) and maturities
sufficient, but in the case of the legal defeasance option only, not more
than such amounts (as certified by a nationally recognized firm of
independent public accountants), to pay and discharge at their Stated
Maturity (or such earlier redemption date as the Company shall have
specified to the Trustee) the principal of, premium, if any, and interest
on all outstanding Notes to maturity or redemption, as the case may be,
and to pay all of the sums payable by it hereunder; provided that the
Trustee shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of said
principal, premium, if any, and interest with respect to the Notes;
(2) in the case of the legal defeasance option only, 91 days pass
after the deposit is made and during the 91 day period no Default
specified in Section 6.01(a)(9) or (10) hereof with respect to the Company
or any Guarantor occurs which is continuing at the end of the period;
68
(3) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the Company delivers to the Trustee an Opinion of Counsel to
the effect that the trust resulting from the deposit does not constitute,
or is qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended;
(6) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred;
(7) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred; and
(8) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent to
the defeasance and discharge of the Notes as contemplated by this Article
8 have been complied with.
(b) In order to have money available on a payment date to pay
principal, premium, if any, or interest on the Notes, the U.S. Government
Obligations deposited pursuant to preceding clause (a) shall be payable as to
principal or interest at least one Business Day before such payment date in such
amounts as shall provide the necessary money. U.S. Government Obligations shall
not be callable at the issuer's option.
(c) Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article 3 hereof.
Section 8.03. Acknowledgment of Discharge by the Trustee
Subject to Section 8.07, after (a) the conditions of Section 8.01 or
Section 8.02 have been satisfied, (b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company and (c) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent referred to in clause (a) above
relating to the defeasance or satisfaction and discharge of this Indenture have
been complied with, the Trustee, upon written request, shall acknowledge in
writing the discharge of the Company' obligations under this Indenture except
for those surviving obligations specified in Section 8.01(e) and the Trustee
shall execute and deliver to the Company any document reasonably requested by
the Company to effect or evidence any release and discharge of any Lien or
Collateral Agreement contemplated by Section 12.04.
69
Section 8.04. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article 8. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal, premium, if any, and
interest on the Notes.
Section 8.05. Repayment to the Company.
(a) The Trustee and the Paying Agent shall promptly, and in any
event no later than five Business Days, pay to the Company upon written request
any excess money or securities held by them at any time; provided, however, that
the Trustee shall not pay any such excess to the Company unless the amount
remaining on deposit with the Trustee, after giving effect to such transfer are
sufficient to pay principal, premium, if any, and interest on the outstanding
Notes, which amount shall be certified as such by independent public
accountants.
(b) The Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of principal, premium, if
any, or interest that remains unclaimed for two years after the date upon which
such payment shall have become due; provided, however, that the Company shall
have either caused notice of such payment to be mailed to each Holder entitled
thereto no less than 30 days prior to such repayment or within such period shall
have published (or at the expense of the Company, the Trustee shall have caused
to be published) such notice in a financial newspaper of widespread circulation
published in the City of New York. After payment to the Company, Holders
entitled to the money must look to the Company and the Guarantors for payment as
general creditors unless an applicable abandoned property law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
Section 8.06. Indemnity for Government Obligations.
The Company and the Guarantors, jointly and severally, shall pay and
shall indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against deposited U.S. Government Obligations or the principal and
interest received on such U.S. Government Obligations.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article 8 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and each of the Guarantor's Obligations under this Indenture and the
Notes and the Note Guarantees shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that if the
Company or any Guarantor has made any payment of principal of, premium, if any,
or interest on any Notes because of the reinstatement of its Obligations, the
Company or any of the Guarantors, as the case may be, shall be subrogated to the
rights of the Holders to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENTS
Section 9.01. Without Consent of Holders.
(a) Notwithstanding Section 9.02 of this Indenture, the Company
and the Trustee, and, if such amendment or supplement relates to any Collateral
Agreement, the Collateral Agent, may amend or supplement this Indenture, the
Notes, the Note Guarantees or any Collateral Agreement without the consent of
any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption by a Successor Company of the
Obligation of the Company or any Guarantor pursuant to Article 5 hereof;
(3) to provide for uncertificated Notes in addition to or in place
of certificated Notes; provided, however, that the uncertificated Notes
are issued in registered form for purposes of Section 163(f) of the
Internal Revenue Code of 1986, as amended, or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the Internal
Revenue Code of 1986, as amended;
(4) to add guarantees with respect to the Notes;
(5) to provide for the issuance of Additional Notes in accordance
with the terms of this Indenture;
(6) to secure the Notes;
(7) to add to the covenants of the Company or the Guarantors for
the benefit of the Holders or to surrender any right or power herein
conferred upon the Company or the Guarantors;
(8) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA if it
becomes necessary to qualify this Indenture under the TIA;
(9) to comply with the rules of any applicable securities
depository;
(10) to make any change that does not adversely affect the rights
of any Holder in any respect; or
(11) to evidence or provide for a replacement Trustee under Section
7.08 hereof;
provided, that the Company has delivered to the Trustee an Opinion of Counsel
stating that any such amendment or supplement complies with the provisions of
this Section 9.01.
(b) Upon the request of the Company and the Guarantors accompanied
by Board Resolutions of their respective Boards of Directors authorizing the
execution of any such supplemental indenture, and upon receipt by the Trustee of
the documents described in Section 9.06 hereof, the Trustee shall join with the
Company and the Guarantors in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations which may be therein contained, but the
71
Trustee shall not be obligated to enter into such supplemental indenture which
affects its own rights, duties or immunities under this Indenture or otherwise.
(c) After an amendment or supplement under this Section 9.01
becomes effective, the Company shall mail to all Holders a notice briefly
describing such amendment or supplement. The failure to give such notice to all
Holders, or any defect therein, shall not impair or affect the validity of an
amendment or supplement under this Section.
Section 9.02. With Consent of Holders.
(a) The Company and the Trustee may amend or supplement this
Indenture, the Notes, the Note Guarantees or any Collateral Agreement with the
written consent of the Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding (including consents obtained in
connection with a tender offer or exchange offer for the Notes) and any existing
Default and its consequences (including, without limitation, an acceleration of
the Notes) or compliance with any provision of this Indenture or the Notes may
be waived with the consent of the Holders of a majority in principal amount of
the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes). However, without the consent of
each Holder affected, an amendment, supplement or waiver under this Section 9.02
may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the stated rate of or extend the stated time for
payment of interest on any Note;
(3) reduce the principal of or extend the Stated Maturity of any
Note;
(4) reduce the premium payable upon the redemption or repurchase
of any Note or change the time at which any Note may be redeemed in
accordance with Section 3.07;
(5) make any Note payable in money other than that stated in the
Note;
(6) make any change in Section 6.04 or 6.07 hereof or in this
Section 9.02(a);
(7) waive a Default or Event of Default in the payment of
principal of premium, if any, or interest on, or redemption payment with
respect to, any Note (excluding any principal or interest due solely as a
result of the occurrence of a Declaration);
(8) following the occurrence of an Asset Disposition or Change of
Control, amend or modify the Company's obligation to repurchase Notes
pursuant to Sections 4.10 and 4.14; or
(9) release all or substantially all of the Collateral otherwise
than in accordance with the terms of this Indenture and the Collateral
Agreements.
(b) Upon the request of the Company and the Guarantors accompanied
by Board Resolutions of their respective Boards of Directors authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the Holders as
aforesaid, and upon receipt by the Trustee of the documents described in Section
9.06 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of such supplemental indenture unless such supplemental indenture
72
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
(c) It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(d) After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to all Holders a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amendment, supplement or waiver.
Section 9.03. Compliance with Trust Indenture Act.
To the extent applicable to the Indenture, every amendment or
supplement to this Indenture, the Notes or Collateral Agreements shall comply
with the TIA.
Section 9.04. Revocation and Effect of Consents.
(a) Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
its Note if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes effective. An amendment, supplement
or waiver becomes effective in accordance with its terms and thereafter binds
every Holder.
(b) The Company may fix a record date for determining which
Holders must consent to such amendment, supplement or waiver. If the Company
fixes a record date, the record date shall be fixed at (i) the later of 30 days
prior to the first solicitation of such consent or the date of the most recent
list of Holders furnished to the Trustee prior to such solicitation pursuant to
Section 2.05 hereof, or (ii) such other date as the Company shall designate.
Section 9.05. Notation on or Exchange of Securities.
(a) Notes authenticated and delivered after the execution of any
supplemental indenture may bear a notation in form approved by the Trustee as to
any matter provided for in such amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall authenticate new Notes that reflect the amendment, supplement
or waiver.
(b) Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06. Trustee to Sign Amendments, Etc.
The Trustee and/or Collateral Agent, as applicable, shall sign any
amendment, waiver or supplement authorized pursuant to this Article 9 if the
amendment, waiver or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee or the Collateral Agent, as the case
73
may be, under this Indenture or any Collateral Agreement. If it does, the
Trustee or the Collateral Agent, as the case may be, may, but need not, sign it.
In signing or refusing to sign such amendment, waiver or supplement, the Trustee
or the Collateral Agent, as the case may be, shall be entitled to receive and,
subject to Section 7.01, shall be fully protected in relying upon, in addition
to the documents required by Section 11.04, an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that such amendment, waiver or
supplement is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be valid and binding upon the Company in
accordance with its terms.
ARTICLE 10
GUARANTEE OF SECURITIES
Section 10.01. Note Guarantee.
(a) Each Guarantor hereby jointly and severally irrevocably and
unconditionally guarantees, as a primary obligor and not a surety, to each
Holder of a Note 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 this Indenture, the Notes or the Obligations of the Company
hereunder or thereunder, (i) the due and punctual payment of the principal,
premium, if any, interest (including post-petition interest in any proceeding
under any Bankruptcy Law whether or not an allowed claim in such proceeding) on
overdue principal, premium, if any, and interest, if lawful on such Note, and
(ii) all other monetary Obligations payable by the Company under this Indenture
(including under Section 7.07 hereof) and the Notes (all of the foregoing being
hereinafter collectively called the "Guaranteed Obligations"), when and as the
same shall become due and payable, whether by acceleration thereof, call for
redemption or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code), in
accordance with the terms of any such Note and of this Indenture, subject,
however, in the case of (i) and (ii) above, to the limitations set forth in
Section 10.04 hereof.
(b) Each Guarantor further agrees that this Note Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any Note held for payment of the Guaranteed
Obligations.
(c) Each Guarantor agrees that it shall not be entitled to, and
hereby irrevocably waives, any right of subrogation in relation to the Holders
or the Trustee in respect of any Guaranteed Obligations. Each Guarantor further
agrees that, as between such Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may
be accelerated as provided in Article 6 for the purposes of such Guarantor's
Note Guarantee herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Guaranteed Obligations, and (y)
in the event of any Declaration of acceleration of such Guaranteed Obligations
as provided in Article 6 hereof, such Guaranteed Obligations (whether or not due
and payable) shall forthwith become due and payable by such Guarantor for the
purpose of this Article 10.
(d) Each Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Article 10.
(e) The Note Guarantee set forth in this Article 10 shall not be
valid or become obligatory for any purpose with respect to a Note until the
certificate of authentication on such Note shall have been signed by or on
behalf of the Trustee.
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Section 10.02. Execution and Delivery of Note Guarantee.
(a) To evidence each Guarantor's Note Guarantee set forth in this
Article 10, each Guarantor hereby agrees that a notation of such Note Guarantee
shall be placed on each Note authenticated and delivered by the Trustee.
(b) This Indenture shall be executed on behalf of each Guarantor,
and an Officer of each Guarantor shall sign the notation of the Note Guarantee
on the Notes by manual or facsimile signature. If an Officer whose signature is
on this Indenture or the notation of Note Guarantee no longer holds that office
at the time the Trustee authenticates the Note on which the Note Guarantee is
endorsed, the Note Guarantee shall be valid nevertheless. Each Guarantor hereby
agrees that the Note Guarantee set forth in Section 10.01 hereof shall remain in
full force and effect notwithstanding any failure to endorse on each Note a
notation of the Note Guarantee.
(c) The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Note
Guarantee set forth in this Indenture on behalf of each Guarantor.
Section 10.03. Note Guarantee Unconditional, etc.
Upon failure of payment when due of any Guaranteed Obligation for
whatever reason, each Guarantor will be obligated to pay the same immediately.
Each Guarantor hereby agrees that its obligations hereunder shall be continuing,
absolute and unconditional, irrespective of: the recovery of any judgment
against the Company or any Guarantor; any extension, renewal, settlement,
compromise, waiver or release in respect of any obligation of the Company under
this Indenture or any Note, by operation of law or otherwise; any modification
or amendment of or supplement to this Indenture or any Note; any change in the
corporate existence, structure or ownership of the Company, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the Company or
its assets or any resulting release or discharge of any obligation of the
Company contained in this Indenture or any Note; the existence of any claim,
set-off or other rights which any Guarantor may have at any time against the
Company, the Trustee, any Holder or any other Person, whether in connection
herewith or any unrelated transactions; provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim; any invalidity or unenforceability relating to or against the
Company for any reason of this Indenture or any Note, or any provision of
applicable law or regulation purporting to prohibit the payment by the Company
of the principal, premium, if any, or interest on any Note or any other
Guaranteed Obligation; or any other act or omission to act or delay of any kind
by the Company, the Trustee, any Holder or any other Person or any other
circumstance whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the Guarantors' obligations
hereunder. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demand whatsoever and covenants that this Note Guarantee
will not be discharged except by the complete performance of the obligations
contained in the Notes, this Indenture and in this Article 10. Each Guarantor's
obligations hereunder shall remain in full force and effect until this Indenture
shall have terminated and the principal of and interest on the Notes and all
other Guaranteed Obligations shall have been paid in full. If at any time any
payment of the principal of or interest on any Note or any other payment in
respect of any Guaranteed Obligation is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of the Company or
otherwise, each Guarantor's obligations hereunder with respect to such payment
shall be reinstated as though such payment had been due but not made at such
time, and this Article 10, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor irrevocably waives any and
all rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee against
75
the Company with respect to such payment or otherwise to be reimbursed,
indemnified or exonerated by the Company in respect thereof.
Section 10.04. Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Note Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any Bankruptcy Law, Federal and state fraudulent
conveyance laws or other legal principles. To effectuate the foregoing
intention, the Holders and each Guarantor hereby irrevocably agree that the
obligations of such Guarantor under the Note Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Note Guarantee or pursuant to
Section 10.05 hereof, result in the obligations of such Guarantor under the Note
Guarantee not constituting such fraudulent transfer or conveyance under federal
or state law.
Section 10.05. Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Note Guarantee, such Funding Guarantor shall be
entitled to a contribution from all other Subsidiary Guarantors in a pro rata
amount based on the Adjusted Net Assets of each Subsidiary Guarantor (including
the Funding Guarantor) for all payments, damages and expenses Incurred by that
Funding Guarantor in discharging the Company's obligations with respect to the
Notes or any other Subsidiary Guarantor's obligations with respect to the
Subsidiary Guarantee.
Section 10.06. Release.
In the event of either (1) the issuance or sale of Capital Stock of
a Guarantor which results in the Guarantor no longer being a Subsidiary of the
Company, (2) a Guarantor becoming an Unrestricted Subsidiary or (3) the sale of
all or substantially all of the assets of a Guarantor pursuant to an Asset
Disposition which complies with the provisions set forth in Section 4.10, the
applicable Guarantor's Note Guarantee will be released without any further
action required on the part of the Trustee or any Holder; provided, however,
that any such termination shall occur if and only to the extent that all
Obligations of each Guarantor under all of its guarantees of, and under all of
its pledges of assets or other security interests which secure, Indebtedness of
the Company and the other Guarantors shall also terminate upon such release,
sale or transfer; provided, further, that without limiting the foregoing, any
proceeds received by the Company or any Subsidiary of the Company from such
transaction shall be applied as provided in Section 4.10 and Section 3.09. The
Trustee shall deliver an appropriate instrument evidencing such release upon
receipt of a request by the Company accompanied by an Officers' Certificate
certifying as to the compliance with this Section 10.06. Any Guarantor not so
released remains liable for the full amount of principal, premium, if any, and
interest on the Notes as provided in this Article 10.
Section 10.07. Additional Guarantors.
Any Person that was not a Guarantor on the date of this Indenture
may (or shall in the case of each Subsidiary (other than Unrestricted
Subsidiaries) created or acquired by the Company after the Issue Date) become a
Guarantor by (a) executing and delivering to the Trustee a supplemental
indenture in form and substance satisfactory to the Trustee, which subjects such
Person to the provisions of this Indenture as a Guarantor, (b) executing and
delivering to the Collateral Agent such amendments to the Collateral Agreements
76
as may be necessary in order to grant to the Collateral Agent, for the benefit
of Holders, a perfected security interest in such Person's Collateral (as such
term is defined in the Second Lien Security Agreement) and are required to be
pledged pursuant to the Collateral Agreements; (iii) taking such further action
and executing other documents specified in this Indenture or the Collateral
Agreements or otherwise necessary to give effect to the foregoing; and (x)
delivering to the Trustee an Opinion of Counsel to the effect that such
supplemental indenture and any other documents required to be delivered have
been duly authorized and executed by such Person and constitute the legal,
valid, binding and enforceable obligation of such Person (subject to such
customary exceptions concerning creditors' rights and equitable principles as
may be acceptable to the Trustee in its discretion). The Note Guarantee of each
Person described in this Section 10.07 shall apply to all Notes theretofore
executed and delivered, notwithstanding any failure of such Notes to contain a
notation of such Note Guarantee thereon.
Section 10.08. Successors and Assigns.
This Article 10 shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Notes shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions of this Indenture.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 11.02. Notices.
(a) Any notice or communication by the Company, any Guarantor or
the Trustee to the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt requested),
confirmed facsimile transmission or overnight air courier guaranteeing next day
delivery, to the other's address:
If to the Company or any of the Guarantors:
North Atlantic Trading Company, Inc.
0000 Xxxx Xxxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
If to the Trustee and Collateral Agent:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, XX 00000-0000
77
(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if by facsimile
transmission; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
(d) Any notice or communication to a Holder shall be mailed by
first class mail, postage prepaid, to its address shown on the register kept by
the Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA ss. 313(c), to the extent required by the TIA. Failure to mail
a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
(e) If a notice or communication is mailed to any Person in the
manner provided above within the time prescribed, it is duly given, whether or
not the addressee receives it.
(f) If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 11.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company and/or any of the
Guarantors to the Trustee or the Collateral Agent, as the case may be, to take
any action under this Indenture or any Collateral Agreement, the Company and/or
any of the Guarantors, as the case may be, shall furnish to the Trustee or the
Collateral Agent, as the case may be:
(1) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee or the Collateral Agent, as the case may be
(which shall include the statements set forth in Section 11.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture or any Collateral
Agreement relating to the proposed action have been satisfied (except with
regard to an authentication order pursuant to Section 2.02(c) hereof,
which shall require a certificate of two Officers); and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee or the Collateral Agent, as the case may be
(which shall include the statements set forth in Section 11.05 hereof)
stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
Section 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture or any Collateral Agreement
(other than a certificate provided pursuant to TIA ss. 314(a)(4)) shall include:
78
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been satisfied.
With respect to matters of fact, an Opinion of Counsel may rely on an
Officer's Certificate, certificates of public officials or reports or opinions
of experts.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 11.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York City, or at a place of payment are authorized or
obligated by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
Section 11.08. No Recourse Against Others.
No past, present or future director, officer, employee, agent,
manager, stockholder or partner of the Company, any Guarantor or any of their
respective predecessors shall have any liability for any Obligations of the
Company or any Guarantor under the Notes, the Note Guarantees or this Indenture
or for any claim based on, in respect of, or by reason of such Obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. This waiver and release are part of the consideration for issuance of
the Notes.
Section 11.09. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
Section 11.10. Governing Law.
This Indenture and the Notes 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.
79
Section 11.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of any of the Guarantors, the Company or their respective
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 11.12. Successors.
All agreements of the Company and the Guarantors in this Indenture,
the Notes and the Note Guarantees shall bind its successors. All agreements of
each of the Trustee and the Collateral Agreement in this Indenture shall bind
their respective successors.
Section 11.13. Severability.
In case any provision in this Indenture, in the Notes or in the Note
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 11.14. Counterpart Originals.
This Indenture may be executed in any number of counterparts, each
of which so executed shall be an original, but all of them together represent
the same agreement.
Section 11.15. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
ARTICLE 12
SECURITY
Section 12.01. Grant of Security Interest.
--------------------------
(a) To secure the due and punctual payment of the principal of,
premium, if any, and interest on the Notes and amounts due hereunder and under
the Note Guarantees when and as the same shall be due and payable, whether on an
Interest Payment Date, by acceleration, purchase, repurchase, redemption or
otherwise, and interest on the overdue principal of, premium, if any, and
interest (to the extent permitted by law), if any, on the Notes and the
performance of all other Obligations of the Company and the Guarantors to the
Holders, the Collateral Agent or the Trustee under this Indenture, the
Collateral Agreements, the Note Guarantees and the Notes, the Company and the
Guarantors hereby covenant to cause the Collateral Agreements to be executed and
delivered concurrently with this Indenture. The Collateral Agreements shall
provide for the grant by the Company and Guarantors party thereto to the
Collateral Agent security interests in the Collateral subject to the terms of
the Intercreditor Agreement.
(b) Each Holder, by its acceptance of a Note, (i) appoints the
Collateral Agent to act as its agent (and by its signature below, the Collateral
Agent accepts such appointment) and (ii) consents and agrees to the terms of
each Collateral Agreement, as the same may be in effect or may be amended,
restated, supplemented or otherwise modified from time to time in accordance
with their respective terms, and authorizes and directs the Collateral Agent to
enter into the Collateral Agreements and to perform its obligations and exercise
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its rights thereunder in accordance therewith. Parent and the Company shall, and
the Company shall cause each of its Restricted Subsidiaries to, do or cause to
be done, at their sole cost and expense, all such actions and things as may be
necessary or proper, or as may be required by the provisions of the Collateral
Agreements, to assure and confirm to the Collateral Agent the security interests
in the Collateral contemplated hereby and by the Collateral Agreements, as from
time to time constituted, so as to render the same available for the security
and benefit of this Indenture and of the Notes and Note Guarantees secured
hereby, according to the intent and purpose herein and therein expressed. Parent
and the Company shall, and the Company shall cause each of its Restricted
Subsidiaries to (i) perform and observe their obligations under the Collateral
Agreements and (ii) take any and all commercially reasonable actions required to
cause the Collateral Agreements to create and maintain, as security for the
Obligations contained in this Indenture, the Notes, the Collateral Agreements
and the Note Guarantees valid, enforceable and perfected (except as expressly
provided herein or therein) security interests in and on all the Collateral, in
favor of the Collateral Agent, and subject to no other Liens, in each case,
except as expressly permitted herein or therein.
Section 12.02. Release of Collateral.
(a) The Collateral Agent shall not at any time release Collateral
from the security interests created by the Collateral Agreements unless such
release is in accordance with the provisions of this Indenture and the
Collateral Agreements.
(b) At any time when a Default or an Event of Default shall have
occurred and be continuing, no release of Collateral pursuant to the provisions
of this Indenture and the Collateral Agreements (except to the extent
specifically provided in any such provision) shall be effective as against the
Holders or the Collateral Agent or the Trustee.
(c) The release of any Collateral from the terms of the Collateral
Agreements shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral is
released pursuant to this Indenture and the Collateral Agreements.
Section 12.03. Specified Releases of Collateral.
(a) Notwithstanding anything to the contrary in Section 12.02,
Collateral may be released from the Lien and security interest created by the
Second Lien Collateral Documents at any time or from time to time in accordance
with the provisions of the Collateral Agreements or as provided hereby. Upon the
request of the Company pursuant to an Officers' Certificate certifying, and an
Opinion of Counsel stating, that all conditions precedent hereunder have been
met and without the consent of any Holder, whether prior to or after the
Discharge of First Lien Obligations, the Company and the Guarantors will be
entitled to releases of assets included in the Collateral from the Liens
securing the obligations under the Notes and the Note Guarantees, and the
Collateral Agent shall release the same from such Liens, under any one or more
of the following circumstances:
(1) to enable the Company (or a Guarantor) to consummate asset
dispositions permitted or not prohibited under Section 4.10, in each case
to a Person other than the Company or a Guarantor or any of their
respective Subsidiaries; provided that such Liens will not be released if
such sale or disposition is subject to Section 5.01;
(2) if any Guarantor is released from its Note Guarantee, such
Guarantor's assets will also be released from the Liens securing the Notes
and the Note Guarantees; or
(3) as described under Section 9.01 and Section 9.02.
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(b) Upon receipt of an Officers' Certificate and Opinion of
Counsel and any necessary or proper instruments of termination, satisfaction or
release prepared by the Company or the Guarantors, as the case may be, the
Collateral Agent shall execute, deliver or acknowledge such instruments or
releases to evidence the release of any Collateral permitted to be released
pursuant to this Indenture or the Collateral Agreements.
Section 12.04. Release upon Satisfaction or Defeasance of all Outstanding
Obligations.
The Liens on all Collateral that secure the Notes and the Note
Guarantees will be terminated and released:
(1) if the Company exercises Legal Defeasance or Covenant
Defeasance as described under Section 8.01;
(2) upon satisfaction and discharge of this Indenture as described
under Section 8.02; or
(3) upon payment in full in immediately available funds of the
principal of, premium, if any, and accrued and unpaid interest on the Notes and
all other Obligations that are then due and payable.
Upon receipt of an Officers' Certificate and Opinion of
Counsel and any necessary or proper instruments of termination, satisfaction or
release prepared by the Company or the Guarantors, as the case may be, the
Collateral Agent shall execute, deliver or acknowledge such instruments or
releases to evidence the release of any Collateral permitted to be released
pursuant to this Indenture or the Collateral Agreements, including the
Intercreditor Agreement.
Section 12.05. Form and Sufficiency of Release.
In the event that the Company or any Guarantor has sold, exchanged,
or otherwise disposed of or proposes to sell, exchange or otherwise dispose of
any portion of the Collateral that may be sold, exchanged or otherwise disposed
of by the Company or such Guarantor to any Person other than the Company or a
Guarantor or any of their respective Subsidiaries, and the Company or such
Guarantor requests in writing that the Collateral Agent furnish a written
disclaimer, release or quit-claim of any interest in such property under this
Indenture and the Collateral Agreements, the Collateral Agent shall execute,
acknowledge and deliver to the Company or such Guarantor (in proper form
prepared by the Company or such Guarantor) such an instrument promptly after
satisfaction of the conditions set forth herein for delivery of any such
release. Notwithstanding the preceding sentence, all purchasers and grantees of
any property or rights purporting to be released herefrom shall be entitled to
rely upon any release executed by the Collateral Agent hereunder as sufficient
for the purpose of this Indenture and as constituting a good and valid release
of the property therein described from the Lien of this Indenture or of the
Collateral Agreements.
Section 12.06. Purchaser Protected.
No purchaser or grantee of any property or rights purporting to be
released herefrom shall be bound to ascertain the authority of the Trustee or
the Collateral Agent to execute the release or to inquire as to the existence of
any conditions herein prescribed for the exercise of such authority; nor shall
any purchaser or grantee of any property or rights permitted by this Indenture
to be sold or otherwise disposed of by the Company be under any obligation to
ascertain or inquire into the authority of the Company to make such sale or
other disposition.
82
Section 12.07. Authorization of Actions to be Taken by the Collateral Agent
Under the Collateral Agreements.
Subject to the provisions of the applicable Collateral Agreements,
the Trustee and each Holder (by acceptance of its Notes) agrees that (a) the
Collateral Agent may, in its sole discretion and without the consent of the
Trustee or the Holders, take all actions it deems necessary or appropriate in
order to (i) enforce any of the terms of the Collateral Agreements and (ii)
collect and receive any and all amounts payable in respect of the Obligations of
the Company and the Guarantors hereunder and under the Notes, the Note
Guarantees and the Collateral Agreements and (b) the Collateral Agent shall have
power to institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any act that may be
unlawful or in violation of the Collateral Agreements or this Indenture, and
suits and proceedings as the Collateral Agent may deem expedient to preserve or
protect its interests and the interests of the Trustee and the Holders in the
Collateral (including the power to institute and maintain suits or proceedings
to restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest thereunder or be prejudicial to the interests
of the Collateral Agent, the Holders or the Trustee). Notwithstanding the
foregoing, the Collateral Agent may, at the expense of the Company, request the
direction of the Holders with respect to any such actions and upon receipt of
the written consent of the Holders of at least a majority in aggregate principal
amount of the then outstanding Notes, shall take such actions; provided that all
actions so taken shall, at all times, be in conformity with the requirements of
the Intercreditor Agreement.
Section 12.08. Authorization of Receipt of Funds by the Trustee Under the
Collateral Agreements.
The Collateral Agent is authorized to receive any funds for the
benefit of itself, the Trustee and the Holders distributed under the Collateral
Agreements and to the extent not prohibited under the Intercreditor Agreement,
for turnover to the Trustee to make further distributions of such funds to
itself, the Trustee and the Holders in accordance with the provisions of Section
6.10 and the other provisions of this Indenture and the Collateral Agreements.
Section 12.09. Intercreditor Agreement.
This Article Twelve, the Second Lien Security Agreement, the Second
Lien Mortgages and the other Second Lien Collateral Documents are subject to the
terms, limitations and conditions set forth in the Intercreditor Agreement,
which the Trustee as Collateral Agent is hereby directed to execute, deliver and
perform.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
NORTH ATLANTIC TRADING
COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and Chief
Financial Officer
NORTH ATLANTIC HOLDING
COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and Chief
Financial Officer
XXXX XXXXXX & SONS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
NATIONAL TOBACCO COMPANY, LP
By: National Tobacco Finance Corporation,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
NATIONAL TOBACCO FINANCE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
00
XXXXX XXXXXXXX XXXXXXXXX COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
NORTH ATLANTIC OPERATING COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
RBJ SALES, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
85
U.S. BANK NATIONAL ASSOCIATION, as
Trustee and Collateral Agent
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
86
A-3
EXHIBIT A
CUSIP No:
(Front of Note)
No. 1 $_______________
NORTH ATLANTIC TRADING COMPANY, INC.
10% Senior Secured Notes due 0000
XXXXX XXXXXXXX TRADING COMPANY, INC., a Delaware corporation
promises to pay to Cede & Co., as nominee of the Depository Trust Company, or
its registered assigns, the principal sum of $[_____________] on March 1, 2012.
Interest Payment Dates: [_____________] and [_____________],
commencing [_____________], 20[__].
Record Dates: [_____________] and [_____________] (whether or not a
Business Day).
Additional provisions of this Note are set forth on the other side
of this Note.
Dated:
NORTH ATLANTIC TRADING
COMPANY, INC.
By:_______________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: _______________________________
Authorized Officer
A-1
(Reverse of Note)
10% SENIOR SECURED NOTE DUE 2012
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
1. Interest. North Atlantic Trading Company, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Note at the rate and in the manner specified below. The Company shall pay,
in cash, interest and additional interest, if any, on the principal amount of
this Note at the rate per annum of 10%. The Company will pay interest and
additional interest, if any, semiannually in arrears on March 1 and September 1
of each year (each an "Interest Payment Date"), commencing September 1, 2007, or
if any such day is not a Business Day on the next succeeding Business Day.
Interest will be computed on the basis of a 360-day year consisting of twelve
30-day months. Interest shall accrue from the most recent Interest Payment Date
to which interest has been paid or, if no interest has been paid, from the date
of the original issuance of the Notes. To the extent lawful, the Company shall
pay interest on overdue principal at the rate of 1% per annum in excess of the
then applicable interest rate on the Notes; it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) at the
same rate to the extent lawful.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) and additional interest, if any, to the Persons who
are registered Holders of Notes at the close of business on the Record Date
immediately preceding the Interest Payment Date, even if such Notes are
cancelled after such Record Date and on or before such Interest Payment Date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal, premium, if any, and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts ("U.S. Legal Tender"). However, the Company may pay principal,
premium, if any, and interest by its check payable in such U.S. Legal Tender.
The Company may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
without prior notice to any Holder. The Company may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture,
dated as of May 9, 2007 (the "Indenture"), among the Company, the Guarantors and
the Trustee. The terms of the Indenture shall govern any inconsistencies between
the Indenture and the Notes.
5. Optional Redemption. (a) On and after March 1, 2008, the Notes
will be redeemable, at the Company's option, in whole at any time or in part
from time to time, upon not less than 30 nor more than 60 days' prior notice, at
the following redemption prices (expressed in percentages of principal amount),
if redeemed during the 12-month period commencing March 1 of the years set forth
below, plus accrued and unpaid interest to the redemption date (subject to the
right of holders of record on the relevant record date to receive interest due
on the relevant Interest Payment Date):
A-2
REDEMPTION
YEAR PRICE
-------------------------------------------------- ----------
2008.............................................. 105.000%
2009.............................................. 102.500%
2010 and thereafter............................... 100.000%
(b) Prior to March 1, 2008, the Company may redeem the Notes, at
its option, in whole at any time or in part from time to time, upon not less
than 30 nor more than 60 days' prior notice, at a redemption price equal to 100%
of the principal amount of the Notes redeemed plus the Applicable Premium as of,
and accrued and unpaid interest to, the applicable redemption date (subject to
the right of the holders of record on the relevant record date to receive
interest due on the relevant Interest Payment Date).
6. Mandatory Redemption. Except as set forth in Sections 4.10 and
4.14 of the Indenture, the Notes are not subject to mandatory redemption or
sinking fund payments.
7. Repurchase at Option of Holder. (a) Upon the occurrence of a
Change of Control each Holder will have the right to require the Company to
repurchase all or any part of such Holder's Notes at a purchase price in cash
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of purchase (subject to the right of holders of record on
the relevant Record Date to receive interest due on the relevant Interest
Payment Date). Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder with a copy to the Trustee stating: (i) that a
Change of Control has occurred and that such Holder has the right to require the
Company to purchase such Holder's Notes at a purchase price in cash equal to
101% of the principal amount thereof plus accrued and unpaid interest, if any,
to the date of purchase (subject to the right of holders of record on a Record
Date to receive interest on the relevant Interest Payment Date), (ii) the
repurchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and (iii) the procedures determined by the
Company, consistent with the Indenture, that a Holder must follow in order to
have its Notes purchased.
(b) If the Company or a Subsidiary consummates any Asset
Disposition, and when the aggregate amount of Excess Proceeds from such an Asset
Disposition exceeds $10 million, the Company shall be required to make a Net
Proceeds Offer in the manner described in the Indenture.
8. Notice of Redemption. Notice of redemption shall be mailed at
least 30 but no more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes may be redeemed
in part but only in whole multiples of $1.00, unless all of the Notes held by a
Holder are to be redeemed. On and after the redemption date, interest ceases to
accrue on Notes or portions of them called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1.00 and integral multiples of $1.00.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. The Registrar and the Trustee may require a Holder among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption. Also, it need not exchange or register the transfer of
any Notes during a period beginning at the opening of business on a Business Day
15 days before the day of any selection of Notes to be redeemed and ending at
the close of business on the day of selection or during the period between a
Record Date and the corresponding Interest Payment Date. This Note represents
the aggregate principal amount of outstanding Notes from time to time endorsed
A-3
hereon and the aggregate principal amount of outstanding Notes represented
hereby may from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions.
10. Persons Deemed Owners. Prior to due presentment of a Note for
registration of transfer and subject to the Indenture, the Company, the Trustee,
any Paying Agent or any Registrar may deem and treat the Person in whose name
any Note shall be registered upon the register of Notes kept by the Registrar as
the absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of the ownership or other writing thereon made by
anyone other than the Company, any Registrar or any co-registrar) for the
purpose of receiving payments of principal of or interest on such Note and for
all other purposes; and none of the Company, the Trustee, any Paying Agent, any
Registrar or any co-registrar shall be affected by any notice to the contrary.
11. Amendments and Waivers. Subject to certain exceptions provided
in the Indenture, the Indenture or the Notes may be amended with the consent of
the Holders of a majority in principal amount of the then outstanding Notes, and
any existing Default or Event of Default (except a payment default) may be
waived with the consent of the Holders of a majority in principal amount of the
then outstanding Notes. Without the consent of any Holder the Indenture or the
Notes may be amended to, among other things, cure any ambiguity, defect or
inconsistency, to comply with the requirements of the Commission in order to
effect or maintain qualification of the Indenture under the TIA if it becomes
necessary to qualify this Indenture under the TIA or to make any change that
does not adversely affect the rights of any Holder.
12. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare the unpaid principal of, and any accrued
and unpaid interest on, all the Notes to be due and payable immediately;
provided, that in the case of an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company or any Guarantor, all
outstanding Notes shall become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Notes. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing default (except a default in
payment of principal or interest) if it determines that withholding notice is in
their interests. The Company must furnish an annual compliance certificate to
the Trustee.
13. Trustee Dealings with the Company. The Trustee under the
Indenture, in its individual or any other capacity may make loans to, accept
deposits from, and perform services for the Company, the Guarantors or any
Affiliate of the Company or the Guarantors, and may otherwise deal with the
Company, the Guarantors and their respective Affiliates as if it were not
Trustee.
14. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, incur additional Indebtedness, make payments in respect of
its Capital Stock or certain Indebtedness, enter into transactions with
Affiliates, create dividend or other payment restrictions affecting
Subsidiaries, merge or consolidate with any other Person, sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets or adopt a plan of liquidation. Such limitations are subject to a number
of important qualifications and exceptions provided for in the Indenture. The
Company must annually report to the Trustee on compliance with such limitations.
A-4
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. Defeasance. Subject to certain conditions provided for in the
Indenture, the Company at any time may terminate some or all of its obligations
under the Notes and the Indenture if the Company deposits with the Trustee money
or U.S. Government Obligations for the payment of principal, premium (if any)
and interest on the Notes to redemption or maturity, as the case may be.
17. Governing Law. This Indenture and the Notes 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.
18. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
19. Security. The Company's and Guarantors' obligations under the
Notes are secured by liens on the Collateral pursuant to the Collateral
Agreements. The actions of the Trustee, the Collateral Agent and the Holders
secured by such liens and the application of proceeds from the enforcement of
any remedies with respect to such Collateral are limited pursuant to the terms
of the Collateral Agreements.
20. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
A-5
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to:
North Atlantic Trading Company, Inc.
0000 Xxxx Xxxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Chief Financial Officer
A-6
FORM OF NOTATION ON NOTE
RELATING TO NOTE GUARANTEE
NOTE GUARANTEE
The Guarantors (as defined in the Indenture referred to in the Note
upon which this notation is endorsed and each hereinafter referred to as a
"Guarantor," which term includes any successor Person under the Indenture) (i)
have jointly and severally irrevocably and unconditionally guaranteed as a
primary obligor and not a surety (such guarantee by each Guarantor being
referred to herein as the "Note Guarantee"), (a) the due and punctual payment of
the principal, premium, if any, and interest on the Notes, whether at Stated
Maturity or interest payment date, by acceleration, call for redemption or
otherwise, (b) the due and punctual payment of interest on the overdue principal
of and interest, if any, on the Notes, to the extent lawful, (c) the due and
punctual performance of all other monetary Obligations of the Company under the
Indenture and the Notes to the Holders or the Trustee, all in accordance with
the terms set forth in Article 10 of the Indenture and (d) in case of any
extension of time of payment or renewal of any Notes or any such Obligations,
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 by
acceleration or otherwise and (ii) have agreed to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Note Guarantee.
The Obligations of each Guarantor to the Holders and to the Trustee
pursuant to this Note Guarantee and the Indenture are expressly set forth in
Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms of this Note Guarantee.
No stockholder, officer, director or incorporator, as such, past,
present or future of any Guarantor shall have any liability under this Note
Guarantee by reason of his or its status as such stockholder, officer, director
or incorporator.
This is a continuing Note Guarantee and, except as otherwise
expressly provided for in Section 10.06 of the Indenture, shall remain in full
force and effect and shall be binding upon the Guarantor and its successors and
assigns until full and final payment of all of the Company's Obligations under
the Notes and the Indenture and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This is a Note Guarantee of payment and not of collectability.
This Note Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Note upon which this Note
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE 10 OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
A-7
Guarantors:
NORTH ATLANTIC HOLDING COMPANY, INC.
By: _______________________________
Name:
Title:
XXXX XXXXXX & SONS, INC.
By: _______________________________
Name:
Title:
NATIONAL TOBACCO COMPANY, LP
By: National Tobacco Finance Corporation,
its General Partner
By: _______________________________
Name:
Title:
NATIONAL TOBACCO FINANCE CORPORATION
By: _______________________________
Name:
Title:
NORTH ATLANTIC CIGARETTE COMPANY, INC.
By: _______________________________
Name:
Title:
A-8
NORTH ATLANTIC OPERATING COMPANY, INC.
By: _______________________________
Name:
Title:
RBJ SALES, INC.
By: _______________________________
Name:
Title:
XXXXXX, INC.
By: _______________________________
Name:
Title:
A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
____________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
____________________________________________________________________________
agent to transfer this Note 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 face of this Note)
Signature Guarantee: (Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements will
include membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.)
A-10
OPTION OF NOTEHOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased
by the Company pursuant to Section 4.10 or Section 4.14 of the Indenture check
the appropriate box:
____ Section 4.10 _____ Section 4.14
If you want to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you
elect to have purchased:
$_____________________
Date:_________________
Your Signature:____________________________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee:
____________________________
(Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements will include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
A-11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
AMOUNT OF AMOUNT OF PRINCIPAL
DECREASE IN INCREASE IN AMOUNT OF THIS SIGNATURE OF
PRINCIPAL PRINCIPAL GLOBAL NOTE AUTHORIZED
AMOUNT OF AMOUNT OF FOLLOWING SUCH OFFICER OF
DATE OF THIS GLOBAL THIS GLOBAL DECREASE TRUSTEE OR
EXCHANGE NOTE NOTE (OR INCREASE) NOTE CUSTODIAN
-------- ----------- ----------- -------------- --------------
A-12
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
North Atlantic Trading Company, Inc.
0000 Xxxx Xxxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
[Registrar address block]
Re: 10% Senior Secured Notes due 2012
Reference is hereby made to the Indenture, dated as of May 9, 2007
(the "Indenture"), among North Atlantic Trading Company, Inc., a Delaware
corporation, as issuer (the "Company"), the Guarantors party thereto and U.S.
Bank National Association, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $___________ in such Note[s] or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the applicable 144A Global Note and/or the
applicable Definitive Note and in the Indenture and the Securities Act.
2. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act and (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
B-1
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the applicable Regulation S Global Note and/or the
applicable Definitive Note and in the Indenture and the Securities Act.
3. [_] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule
904, and the Transferor hereby further certifies that it has not engaged
in any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) if such
Transfer is in respect of a principal amount of Notes at the time of
transfer of less than $250,000, an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has attached
to this certification), to the effect that such Transfer is in compliance
with the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
applicable IAI Global Note and/or the applicable Definitive Notes and in
the Indenture and the Securities Act.
4. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [_] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of
any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
B-2
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.
(b) [_] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) [_] CHECK IF TRANSFER IS PURSUANT TO OTHER Exemption. (i)
The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other
than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted
Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
[Insert Name of Transferor]
By: _______________________________
Name:
Title:
Dated: _______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _________), or
(ii) [_] Regulation S Global Note (CUSIP _________), or
(iii) [_] IAI Global Note (CUSIP _________); or
(b) [_] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _________), or
(ii) [_] Regulation S Global Note (CUSIP _________), or
(iii) [_] IAI Global Note (CUSIP _________), or
(iv) [_] Unrestricted Global Note (CUSIP _________); or
(b) [_] a Restricted Definitive Note; or
(c) [_] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
North Atlantic Trading Company, Inc.
0000 Xxxx Xxxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
[Registrar address block]
Re: 10% Senior Secured Notes due 2012
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of May 9, 2007
(the "Indenture"), among North Atlantic Trading Company, Inc., a Delaware
corporation, as issuer (the "Company"), the Guarantors party thereto and U.S.
Bank National Association, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $____________ in such Note[s] or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
NOTE. In connection with the Exchange of the Owner's beneficial interest
in a Restricted Global Note for a beneficial interest in an Unrestricted
Global Note in an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with the United States Securities Act of 1933, as
amended (the "Securities Act"), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv)
the beneficial interest in an Unrestricted Global Note is being acquired
in compliance with any applicable blue sky securities laws of any state of
the United States.
(b) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global
Note for an Unrestricted Definitive Note, the Owner hereby certifies (i)
the Definitive Note is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Definitive Note is being acquired in
C-1
compliance with any applicable blue sky securities laws of any state of
the United States.
(c) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest
in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in
compliance with any applicable blue sky securities laws of any state of
the United States.
(d) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global
Note for a Restricted Definitive Note with an equal principal amount, the
Owner hereby certifies that the Restricted Definitive Note is being
acquired for the Owner's own account without transfer. Upon consummation
of the proposed Exchange in accordance with the terms of the Indenture,
the Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Definitive Note and in the Indenture and the
Securities Act.
(b) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial
interest in the [CHECK ONE] " 144A Global Note, " Regulation S Global
Note, " IAI Global Note with aN equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities Act,
and in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
[Insert Name of Owner]
By: _______________________________
Name:
Title:
Dated: ______________________
C-3
ANNEX A TO CERTIFICATE OF EXCHANGE
1. The Owner currently owns and proposes to exchange the
following:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _________), or
(ii) [_] Regulation S Global Note (CUSIP _________), or
(iii) [_] IAI Global Note (CUSIP _________), or
(b) [_] a Restricted Definitive Note.
2. After the exchange the Owner will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _________), or
(ii) [_] Regulation S Global Note (CUSIP _________), or
(iii) [_] IAI Global Note (CUSIP _________), or
(iv) [_] Unrestricted Global Note (CUSIP _________), or
(b) [_] a Restricted Definitive Note; or
(c) [_] an Unrestricted Definitive Note.
3. The Owner requests that Definitive Notes be registered in the
following name:
-------------------
-------------------
and sent to the Owner at the following address:
-------------------
-------------------
C-4
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
North Atlantic Trading Company, Inc.
0000 Xxxx Xxxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
[Registrar address block]
Re: 10% Senior Secured Notes due 2012
Reference is hereby made to the Indenture, dated as of May 9, 2007
(the "Indenture"), among North Atlantic Trading Company, Inc., a Delaware
corporation, as issuer (the "Company"), the Guarantors party thereto and U.S.
Bank National Association, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [_] a beneficial interest in a Global Note, or
(b) [_] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Notes, at the time of transfer
of less than $250,000, an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144(k) under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing the Definitive Note or beneficial interest in a Global Note
from us in a transaction meeting the requirements of clauses (A) through (E) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[Insert Name of Accredited Investor]
By: _________________________________
Name:
Title:
Dated: ______________________
D-2
