Contract
EXHIBIT 4.4
THIS SECURITY OF XXXXXXXX AMERICAN INC. (THE “COMPANY”) HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR
ANY OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR OTHER LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE
DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WERE THE OWNERS OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND
(Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE “RESALE RESTRICTION
TERMINATION DATE”), OFFER, SELL, OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A UNDER THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY, THE TRUSTEE AND THE
REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D)
PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE
TO REQUIRE THAT AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE
COMPANY, THE TRUSTEE AND THE REGISTRAR IS COMPLETED AND DELIVERED
BY THE TRANSFEROR. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND “UNITED STATES”
AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENTS ARE MADE TO
CEDE & CO. OR TO SUCH ANY 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.
BY ITS ACQUISITION OF THIS SECURITY THE HOLDER HEREOF WILL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT EITHER (A) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE AND HOLD THIS
SECURITY CONSTITUTES ASSETS OF AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE U.S.
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) THAT IS SUBJECT TO TITLE I OF
ERISA, OF ANY PLAN, ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S.
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY PROVISIONS UNDER ANY FEDERAL, STATE,
LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE
CODE (“SIMILAR LAWS”), OR OF ANY ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN
ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (B) THE PURCHASE AND HOLDING OF THIS SECURITY
BY SUCH HOLDER WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA
OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
XXXXXXXX AMERICAN INC.
7.250 % Senior Secured Notes due 2012
| Certificate No. ___ | $ | |
| CUSIP No. |
Xxxxxxxx American Inc., a North Carolina corporation (the “Company,” which term includes any
successor corporation under the Indenture hereinafter referred to), for value received, promises to
pay to Cede & Co., or its registered assigns, the principal sum of
($ ) on June 1, 2012.
Interest Payment Dates: June 1 and December 1, commencing December 1, 2006.
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Record Dates: May 15 and November 15.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall have the same effect for all purposes as if set forth at
this place.
Unless the certificate of authentication hereof has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
Dated: June 20, 2006
| XXXXXXXX AMERICAN INC., | ||||
| as Issuer | ||||
| By: | ||||
| Xxxxxx X. Xxxxxx | ||||
| Senior Vice President and Treasurer | ||||
| By: | ||||
| XxXxxx X. Xxxxx, III | ||||
| Senior Vice President, Deputy General Counsel | ||||
| and Secretary | ||||
Each of the undersigned hereby acknowledges its obligation as a Guarantor under the Indenture.
SANTA FE NATURAL TOBACCO COMPANY, INC., as Guarantor
By: |
||||
| Assistant Treasurer | ||||
| LANE LIMITED, as Guarantor | ||||
By: |
||||
| Assistant Treasurer | ||||
2012
Note [144A][Reg S] Signature Page
| X. X. XXXXXXXX TOBACCO COMPANY, as Guarantor | ||||
By: |
||||
| Senior Vice President and Treasurer | ||||
| RJR ACQUISITION CORP., as Guarantor | ||||
By: |
||||
| Vice President and Assistant Secretary | ||||
| X. X. XXXXXXXX TOBACCO CO., as Guarantor | ||||
By: |
||||
| Vice President and Treasurer | ||||
| FHS, INC., as Guarantor | ||||
By: |
||||
| Treasurer | ||||
| GMB, INC., as Guarantor | ||||
By: |
||||
| Treasurer | ||||
2012
Note [144A][Reg S] Signature Page
| CONWOOD HOLDINGS, INC., as Guarantor | ||||
By: |
||||
| Vice President and Treasurer | ||||
| CONWOOD COMPANY, L.P., as Guarantor | ||||
By: |
||||
| Vice President and Treasurer | ||||
| CONWOOD SALES CO., L.P., as Guarantor | ||||
By: |
||||
| Vice President and Treasurer | ||||
| ROSSWIL LLC, as Guarantor | ||||
By: |
||||
| Vice President and Treasurer | ||||
2012
Note [144A][Reg S] Signature Page
(Trustee’s Certificate of Authentication)
This is one of the Notes of the series designated herein referred to in the within-mentioned
Indenture.
Dated: June 20, 0000
| XXX XXXX XX XXX XXXX TRUST COMPANY, N.A., | ||||
| as Trustee | ||||
By: |
||||
| Title: Assistant Treasurer | ||||
2012
Note [144A][Reg S] Signature Page
[REVERSE OF INITIAL NOTE]
7.250% Senior Secured Notes due 2012
7.250% Senior Secured Notes due 2012
References herein to the “Notes” mean the Company’s 7.250% Senior Secured Notes due 2012.
Other capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. Interest. Xxxxxxxx American Inc., a North Carolina corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 7.250% per annum from the date
provided below until maturity and shall pay the additional interest, if any, payable pursuant to
Section 2(d) of the Registration Rights Agreement referred to below (“Additional Interest”). The
Company shall pay interest and Additional Interest, if any, semi-annually on June 1 and December 1
of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each
an “Interest Payment Date”). This Note has been issued in exchange for a like aggregate principal
amount of the 7.250% Notes due 2012 issued by X.X. Xxxxxxxx Tobacco Holdings, Inc. (the “RJR
Notes”). Interest on the Notes shall accrue from the most recent date to which interest has been
paid on the RJR Notes or, if no interest has been paid, from the date of issuance of the RJR Notes;
provided that if there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided
further that the first Interest Payment Date shall be December 1, 2006. Interest shall be computed
on the basis of a 360-day year of twelve 30-day months.
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 May 15 or November 15 immediately preceding the Interest Payment Date,
even if such Notes are canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.13 of the Indenture with respect to defaulted interest. The Notes
shall be payable as to principal, premium and Additional Interest, if any, and interest at the
office or agency of the Company maintained for such purpose within or without the City and State of
New York, or, at the option of the Company, payment of interest and Additional Interest may be made
by check mailed to the Holders at their addresses set forth in the register of Holders, and
provided that payment by wire transfer of immediately available funds shall be required with
respect to principal of and interest, premium and Additional Interest on, all Global Notes and all
other Notes the Holders of which shall have provided wire transfer instructions to the Company or
the Paying Agent. Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, The Bank of New York Trust Company, N.A.,
the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as of May 31,
2006, among the Company, as issuer, certain direct and indirect subsidiaries of the Company, as
guarantors, and The Bank of New York Trust Company, N.A., as trustee (the “Indenture”). The terms
of the Notes include those stated in the Indenture and those made part of the Indenture by
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reference to the Trust Indenture Act of 1939, as amended. The Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.
5. Optional Redemption. The Company may redeem all or a part of the Notes from time
to time in accordance with Article 5 of the Indenture at a redemption price equal to the greater of
(a) 100% of the principal amount of the Notes and (b) the sum of the present values of the
remaining scheduled payments of principal and interest on the Notes, discounted to the redemption
date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the
applicable Treasury Rate plus 30 basis points plus with respect to each of the Notes, accrued and
unpaid interest, including Additional Interest, if any, on the principal amount being redeemed to
the date of redemption.
‘‘Treasury Rate’’ means, with respect to any redemption date, (1) the yield, under the heading
which represents the average for the immediate preceding week, appearing in the most recently
published statistical release designated ‘‘H.15(519)’’ or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption
‘‘Treasury Constant Maturities,’’ for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the Remaining Life, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue will be determined
and the Treasury Rate will be interpolated or extrapolated from such yields on a straight line
basis, rounding to the nearest month) or (2) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain such yields, the rate
per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Price for such redemption date. The Treasury
Rate will be calculated on the third business day preceding the redemption date.
‘‘Comparable Treasury Issue’’ means the U.S. Treasury security selected by an Independent
Investment Banker as having a maturity comparable to the remaining term (‘‘Remaining Life’’) of the
notes to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such notes.
‘‘Independent Investment Banker’’ means any of Xxxxxx Brothers Securities Inc., X.X. Xxxxxx
Securities Inc. or Citigroup Global Markets Inc. or, if all such firms are unwilling or unable to
select the Comparable Treasury Issue, an independent investment banking institution of national
standing appointed by the trustee after consultation with RAI.
‘‘Comparable Treasury Price’’ means (1) the average of five Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest Reference Treasury
Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations.
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‘‘Reference Treasury Dealer’’ means (1) Xxxxxx Brothers Securities Inc., X.X. Xxxxxx
Securities Inc. and Citigroup Global Markets Inc. and their respective successors; provided,
however, that if either of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a ‘‘Primary Treasury Dealer’’), RAI will substitute for such initial
purchaser another Primary Treasury Dealer and (2) any other Primary Treasury Dealer selected by the
Independent Investment Banker after consultation with RAI.
‘‘Reference Treasury Dealer Quotations’’ means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Independent Investment Banker, of the
bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Independent Investment Banker at 5:00 p.m., New York
City time, on the third business day preceding such redemption date.
6. No Sinking Fund. The Company shall not be required to make sinking fund payments
with respect to the Notes.
7. Notice of Redemption. Notice of redemption shall be mailed at least 30 days but
not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at
its registered address. Notes in denominations equal to or larger than $2,000 may be redeemed in
part but only in whole multiples of $1,000, 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 thereof
called for redemption.
8. Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in minimum denominations of $2,000 and integral multiples of $1,000. 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 the Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note may be treated as its
owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture
or the Notes may be amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Securities at the time outstanding of all series affected by
such amendment or supplement, voting as a single class, and any existing Default or compliance with
any provision of the Indenture or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time outstanding of all series
affected by such Default, voting as a single class. Without the consent of any Holder of a Note,
the Indenture or the Notes may be amended or supplemented to convey, transfer, assign, mortgage or
pledge to the Trustee as security for the Notes any property or assets; to
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evidence the succession of another corporation to the Company, or successive successions, and the
assumption by the successor corporation of the covenants, agreements and obligations of the
Company; to add to the covenants of the Company such further covenants, restrictions, conditions or
provisions as its Board of Directors and the Trustee shall consider to be for the protection or
benefit of the Holders of the Notes, and to make the occurrence, or the occurrence and continuance,
of a Default in any such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies provided in the Indenture
as therein set forth; provided, that in respect of any such additional covenant, restriction,
condition or provision such amendment or supplement may provide for a particular period of grace
after Default (which period may be shorter or longer than that allowed in the case of other
Defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit
the remedies available to the Trustee upon such an Event of Default or may limit the right of the
Holders of a majority in aggregate principal amount of the Notes to waive such an Event of Default;
to cure any ambiguity or to correct or supplement any provision contained in the Indenture or in
any indenture supplemental thereto which may be defective or inconsistent with any other provision
contained in the Indenture or in any indenture supplemental thereto; or to make such other
provisions in regard to matters or questions arising under the Indenture or under any indenture
supplemental thereto as the Board of Directors may deem necessary or desirable and which shall not
adversely affect the interests of the Holders of the Notes in any material respect; to evidence and
provide for the acceptance of appointment under the Indenture by a successor trustee with respect
to the Notes and to add to or change any of the provisions of the Indenture as shall be necessary
to provide for or facilitate the administration of the trusts thereunder by more than one trustee;
to comply with the requirements of the TIA; and to add additional Guarantors with respect to the
Notes.
11. Defaults and Remedies. Any of the following events constitutes an “Event of
Default” under the Indenture: (a) default in the payment of any installment of interest upon
Securities of any series as and when the same shall become due and payable, and continuance of such
default for a period of 30 days; or (b) default in the payment of all or any part of the principal
on Securities of any series as and when the same shall become due and payable either at maturity,
upon any redemption, by declaration or otherwise; or (c) default in the payment of any sinking fund
installment as and when the same shall become due and payable by the terms of Securities of any
series; or (d) default in the performance, or breach, of any covenant or agreement of the Company
or the Guarantors in respect of Securities of any series (other than a covenant or agreement in
respect of such Securities a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or breach for a period of 90 days
after there has been given to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the outstanding Securities of all series affected
thereby, a written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or (e) a court having jurisdiction in
the premises shall enter a decree or order for relief in respect of the Company or the Guarantors
in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for any substantial part of its property or
ordering the winding up or liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or (f) the Company or any Restricted
Subsidiary shall commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an order for
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relief in an involuntary case under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Company or for any substantial part of its property, or make any general
assignment for the benefit of creditors; or (g) any Guarantee ceases to be in full force and effect
(except as contemplated by the terms of the Indenture), or any Guarantee is declared in a judicial
proceeding to be null and void, or any Guarantor denies or disaffirms in writing its obligations
under the terms of the Indenture or its Guarantee; or (h) at any time as such security is required
by the terms of the Indenture, any Security Document shall cease to be in full force and effect or
shall cease to give the Collateral Agent the liens or any of the material rights, powers and
privileges purported to be created thereby in favor of the Collateral Agent and such default shall
continue unremedied for a period of at least 30 days after written notice to the Company by the
Collateral Agent; or (i) any other Event of Default provided in the supplemental indenture or Board
Resolution under which Securities of any series are issued or in this Note.
If an Event of Default described in clauses (a), (b), (c), (d) or (i) above (if the Event of
Default under clause (d) or (i) is with respect to less than all series of Securities then
outstanding) occurs and is continuing, then, and in each and every such case, except for any series
of Securities the principal of which shall have already become due and payable, either the Trustee
or the Holders of not less than 25% in aggregate principal amount of the Securities of each such
affected series then outstanding under the Indenture (voting as a single class) by notice in
writing to the Company (and to the Trustee if given by Securityholders), may declare the entire
principal of all Securities of all such affected series, and the interest accrued thereon, if any,
to be due and payable immediately, and upon any such declaration the same shall become immediately
due and payable. If an Event of Default described in clause (d) or (i) (if the Event of Default
under clauses (d) or (i), as the case may be, is with respect to all series of Securities then
outstanding), (e), (f) or (g) occurs and is continuing, then and in each and every such case,
unless the principal of all the Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of all the Securities
then outstanding hereunder (treated as one class), by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal of all the Securities then
outstanding and interest accrued thereon, if any, to be due and payable immediately, and upon any
such declaration the same shall become immediately due and payable.
12. Trustee Dealings with Company. The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the
Trustee.
13. No Recourse Against Others. No director, officer, employee, incorporator or
shareholder of the Company or the Trustee, as such, shall have any liability for any obligations of
the Company or the Trustee, respectively, under the Notes or the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a waiver is against
public policy.
14. Authentication. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
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15. Guarantees. This Note will be entitled to the benefits of certain Guarantees
made for the benefit of the Holders. Subject to the terms of the Indenture, each Guarantor of the
Indenture fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety, jointly and severally, to each Holder of the Notes and the Trustee the full and punctual
payment when due, whether at maturity, by acceleration, by redemption, by repurchase, or otherwise,
of the principal of, premium, if any, and interest on the Notes and all other obligations of the
Company under the Indenture, as provided in the Indenture. Reference is made to the Indenture for
a statement of the respective rights, limitations of rights, duties and obligations thereunder of
the Guarantors, the Trustee and the Holders.
16. 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).
17. Additional Rights of Holders of Notes. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Notes shall have all the rights set forth in the
Registration Rights Agreement, dated as of June 20, 2006, between the Company and each of the
parties named on the signature pages thereof (the “Registration Rights Agreement”).
18. CUSIP and ISIN Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused CUSIP or ISIN
numbers or both numbers to be printed on the Notes and the Trustee may use CUSIP or ISIN numbers or
both numbers in notices to the Holders of the Notes 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 to the Holders of the Notes and reliance may be placed only on the other identification
numbers placed thereon.
19. Governing Law. This Note shall be governed by and construed in accordance with the
laws of the State of New York.
The Company shall furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to:
Xxxxxxxx American Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000-0000
Facsimile: 000-000-0000
Attention: Treasurer
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000-0000
Facsimile: 000-000-0000
Attention: Treasurer
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s)
unto
Insert Taxpayer Identification No.
Please print the name and address including zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and appointing
attorney to transfer said Note on the books of the Company with
full power of substitution in the premises.
In connection with any transfer of this Note occurring prior to the date which is the earlier
of (i) the date a registration statement in relation thereto is declared effective by the SEC or
(ii) the end of the period referred to in Rule 144(k) under the Securities Act, the undersigned
confirms that without utilizing any general solicitation or general advertising that:
[Check One]
[ ](a) this Note is being transferred in compliance with the exemption from registration under the
Securities Act of 1933 provided by Rule l44A thereunder.
or
| [ ](b) | this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture. |
If none of the foregoing boxes is checked, the Trustee or other Registrar shall not be obligated to
register this Note in the name of any Person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Article II of the Indenture
shall have been satisfied.
Date: |
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| NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
Signature Guarantee:
7
Signature must be guaranteed by a participant in a recognized signature guaranty medallion program
or other signature guarantor acceptable to the Trustee.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account
or an account with respect to which it exercises sole investment discretion and that it and any
such account is a “qualified institutional buyer” within the meaning of Rule 144A under the
Securities Act of 1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
Date: |
||||
| NOTICE: To be executed by an executive officer |
8
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS PURSUANT TO REGULATION S
TRANSFERS PURSUANT TO REGULATION S
Xxxxxxxx American Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000-0000
Facsimile: 000-000-0000
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000-0000
Facsimile: 000-000-0000
Attention: |
||||
| The Bank of New York Trust Company, N.A. | ||||
Facsimile: |
||||
Attention: |
||||
Re: ___% Senior Secured Notes due [2007] [2009] [2010][2012][2015].
Reference is hereby made to the Indenture, dated as of May 31, 2006 (the “Indenture”), between
Xxxxxxxx American Inc., as issuer (the “Company”) and The Bank of New York Trust Company, N.A., as
trustee.
In connection with our proposed sale of $ aggregate principal amount of ___% Senior Secured
Notes due 20___(the “Notes”) of the Company, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the United States Securities Act of 1933, as amended
(the “Securities Act”), and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United
States or we and any person acting on our behalf reasonably believed that the transferee was
outside the United States or (ii) the transaction was executed in, on or through the facilities of
a designated off-shore securities market and neither we nor any person acting on our behalf knows
that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the registration requirements of
the Securities Act.
In addition, if the sale is made during a restricted period, we represent that the sale is not
being made to a United States person or for the account or benefit of a United States person.
The Company and the Trustee 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
9
legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in
this certificate have the meanings forth in Regulation S.
| [Insert Name of Transferor] | ||||||
| By: | ||||||
Name: |
||||||
Title: |
||||||
10
