Exhibit 4.9
EXECUTION VERSION
GENERAL NUTRITION CENTERS, INC.
AND EACH OF THE GUARANTORS PARTY HERETO
SENIOR FLOATING RATE TOGGLE NOTES DUE 2014
Dated as of March 16, 2007
LaSalle Bank National Association
Trustee
CROSS-REFERENCE TABLE*
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Trust Indenture |
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Act Section |
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Indenture Section |
310(a)(1) |
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7.10 |
(a)(2) |
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7.10 |
(a)(3) |
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N.A. |
(a)(4) |
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N.A. |
(a)(5) |
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7.10 |
(b) |
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7.10 |
(c) |
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N.A. |
311(a) |
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7.11 |
(b) |
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7.11 |
(c) |
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N.A. |
312(a) |
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2.05 |
(b) |
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12.03 |
(c) |
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12.03 |
313(a) |
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7.06 |
(b)(1) |
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N.A. |
(b)(2) |
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7.06; 7.07 |
(c) |
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7.06; 12.02 |
(d) |
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7.06 |
314(a) |
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4.03;12.02; 12.05 |
(b) |
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N.A |
(c)(1) |
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12.04 |
(c)(2) |
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12.04 |
(c)(3) |
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N.A. |
(d) |
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N.A |
(e) |
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12.05 |
(f) |
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N.A. |
315(a) |
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7.01 |
(b) |
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7.05; 12.02 |
(c) |
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7.01 |
(d) |
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7.01 |
(e) |
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6.11 |
316(a) (last sentence) |
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2.09 |
(a)(1)(A) |
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6.05 |
(a)(1)(B) |
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6.04 |
(a)(2) |
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N.A. |
(b) |
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6.07 |
(c) |
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2.12 |
317(a)(1) |
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6.08 |
(a)(2) |
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6.09 |
(b) |
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2.04 |
318(a) |
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12.01 |
(b) |
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N.A. |
(c) |
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12.01 |
N.A. means not applicable.
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* |
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This Cross Reference Table is not part of the Indenture. |
TABLE OF CONTENTS
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Page |
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
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Section 1.01 |
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Definitions |
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1 |
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Section 1.02 |
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Other Definitions |
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28 |
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Section 1.03 |
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Incorporation by Reference of Trust Indenture Act |
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29 |
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Section 1.04 |
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Rules of Construction |
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29 |
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ARTICLE 2
THE NOTES
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Section 2.01 |
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Form and Dating |
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30 |
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Section 2.02 |
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Execution and Authentication |
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32 |
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Section 2.03 |
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Registrar and Paying Agent |
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33 |
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Section 2.04 |
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Paying Agent to Hold Money in Trust |
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34 |
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Section 2.05 |
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Holder Lists |
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34 |
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Section 2.06 |
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Transfer and Exchange |
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34 |
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Section 2.07 |
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Replacement Notes |
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46 |
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Section 2.08 |
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Outstanding Notes |
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47 |
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Section 2.09 |
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Treasury Notes |
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47 |
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Section 2.10 |
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Temporary Notes |
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47 |
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Section 2.11 |
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Cancellation |
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47 |
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Section 2.12 |
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Defaulted Interest |
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48 |
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Section 2.13 |
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Issuance of Additional Notes |
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48 |
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ARTICLE 3
REDEMPTION AND PREPAYMENT
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Section 3.01 |
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Notices to Trustee |
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49 |
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Section 3.02 |
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Selection of Notes to Be Redeemed or Purchased |
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49 |
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Section 3.03 |
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Notice of Redemption |
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49 |
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Section 3.04 |
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Effect of Notice of Redemption |
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50 |
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Section 3.05 |
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Deposit of Redemption or Purchase Price |
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50 |
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Section 3.06 |
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Notes Redeemed or Purchased in Part |
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51 |
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Section 3.07 |
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Optional Redemption |
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51 |
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Section 3.08 |
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Mandatory Redemption |
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52 |
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Section 3.09 |
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Offer to Purchase by Application of Excess Proceeds |
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52 |
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ARTICLE 4
COVENANTS
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Section 4.01 |
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Payment of Notes |
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53 |
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Section 4.02 |
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Maintenance of Office or Agency |
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54 |
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Section 4.03 |
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Reports |
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54 |
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Section 4.04 |
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Compliance Certificate |
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55 |
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Section 4.05 |
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Taxes |
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56 |
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Section 4.06 |
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Stay, Extension and Usury Laws |
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56 |
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Section 4.07 |
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Limitation on Restricted Payments |
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56 |
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Section 4.08 |
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Limitation on Restrictions on Distributions from Restricted Subsidiaries |
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60 |
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Section 4.09 |
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Limitation on Indebtedness |
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62 |
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Page |
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Section 4.10 |
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Limitation on Sales of Assets |
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64 |
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Section 4.11 |
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Limitation on Transactions with Affiliates |
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66 |
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Section 4.12 |
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Limitation on Liens |
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67 |
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Section 4.13 |
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[Reserved] |
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68 |
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Section 4.14 |
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Corporate Existence |
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68 |
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Section 4.15 |
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Offer to Repurchase Upon Change of Control |
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68 |
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Section 4.16 |
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No Amendment to Subordination Provisions |
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69 |
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Section 4.17 |
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Additional Note Guarantees |
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69 |
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Section 4.18 |
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Designation of Unrestricted Subsidiaries |
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70 |
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ARTICLE 5
SUCCESSORS
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Section 5.01 |
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Merger, Consolidation, or Sale of Assets |
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70 |
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ARTICLE 6
DEFAULTS AND REMEDIES
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Section 6.01 |
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Events of Default |
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72 |
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Section 6.02 |
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Acceleration |
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73 |
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Section 6.03 |
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Other Remedies |
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73 |
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Section 6.04 |
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Waiver of Past Defaults |
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74 |
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Section 6.05 |
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Control by Majority |
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74 |
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Section 6.06 |
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Limitation on Suits |
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74 |
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Section 6.07 |
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Rights of Holders of Notes to Receive Payment |
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75 |
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Section 6.08 |
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Collection Suit by Trustee |
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75 |
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Section 6.09 |
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Trustee May File Proofs of Claim |
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75 |
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Section 6.10 |
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Priorities |
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76 |
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Section 6.11 |
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Undertaking for Costs |
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76 |
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ARTICLE 7
TRUSTEE
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Section 7.01 |
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Duties of Trustee |
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76 |
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Section 7.02 |
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Rights of Trustee |
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77 |
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Section 7.03 |
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Individual Rights of Trustee |
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78 |
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Section 7.04 |
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Trustee’s Disclaimer |
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78 |
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Section 7.05 |
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Notice of Defaults |
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78 |
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Section 7.06 |
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Reports by Trustee to Holders of the Notes |
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78 |
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Section 7.07 |
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Compensation and Indemnity |
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79 |
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Section 7.08 |
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Replacement of Trustee |
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79 |
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Section 7.09 |
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Successor Trustee by Merger, etc. |
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80 |
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Section 7.10 |
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Eligibility; Disqualification |
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80 |
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Section 7.11 |
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Preferential Collection of Claims Against Company |
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81 |
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ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
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Section 8.01 |
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Option to Effect Legal Defeasance or Covenant Defeasance |
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81 |
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Section 8.02 |
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Legal Defeasance and Discharge |
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81 |
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Section 8.03 |
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Covenant Defeasance |
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81 |
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Section 8.04 |
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Conditions to Legal or Covenant Defeasance |
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82 |
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Section 8.05 |
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Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions |
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83 |
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Section 8.06 |
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Repayment to Company |
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84 |
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ii
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Page |
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Section 8.07 |
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Reinstatement |
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84 |
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
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Section 9.01 |
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Without Consent of Holders of Notes |
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84 |
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Section 9.02 |
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With Consent of Holders of Notes |
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85 |
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Section 9.03 |
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86 |
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Section 9.04 |
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Revocation and Effect of Consents |
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86 |
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Section 9.05 |
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Notation on or Exchange of Notes |
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86 |
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Section 9.06 |
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Trustee to Sign Amendments, etc. |
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87 |
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ARTICLE 10
NOTE GUARANTEES
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Section 10.01 |
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Guarantee |
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87 |
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Section 10.02 |
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Limitation on Guarantor Liability |
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88 |
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Section 10.03 |
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Execution and Delivery of Note Guarantee |
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88 |
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Section 10.04 |
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Guarantors May Consolidate, etc., on Certain Terms |
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89 |
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Section 10.05 |
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Releases |
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89 |
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ARTICLE 11
SATISFACTION AND DISCHARGE
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Section 11.01 |
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Satisfaction and Discharge |
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90 |
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Section 11.02 |
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Application of Trust Money |
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91 |
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ARTICLE 12
MISCELLANEOUS
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Section 12.01 |
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91 |
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Section 12.02 |
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Notices |
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91 |
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Section 12.03 |
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Communication by Holders of Notes with Other Holders of Notes |
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92 |
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Section 12.04 |
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Certificate and Opinion as to Conditions Precedent |
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92 |
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Section 12.05 |
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Statements Required in Certificate or Opinion |
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93 |
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Section 12.06 |
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Rules by Trustee and Agents |
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93 |
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Section 12.07 |
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No Personal Liability of Directors, Officers, Employees and Stockholders |
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93 |
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Section 12.08 |
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Governing Law |
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93 |
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Section 12.09 |
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No Adverse Interpretation of Other Agreements |
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93 |
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Section 12.10 |
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Successors |
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94 |
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Section 12.11 |
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Severability |
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94 |
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Section 12.12 |
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Counterpart Originals |
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94 |
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Section 12.13 |
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Table of Contents, Headings, etc. |
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94 |
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Section 12.14 |
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Waiver of Jury Trial |
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94 |
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Section 12.15 |
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Force Majeure |
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94 |
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EXHIBITS
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Exhibit A1
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FORM OF NOTE |
Exhibit A2
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FORM OF REGULATION S TEMPORARY GLOBAL NOTE |
Exhibit B
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FORM OF CERTIFICATE OF TRANSFER |
Exhibit C
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FORM OF CERTIFICATE OF EXCHANGE |
Exhibit D
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FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR |
Exhibit E
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FORM OF NOTATION OF GUARANTEE |
iii
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Exhibit F
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FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS |
iv
INDENTURE dated as of March 16, 2007 between General Nutrition Centers, Inc., a Delaware
corporation (the “
Company”), the Guarantors (as defined) and LaSalle Bank National Association, a
national banking association, as trustee (the “
Trustee”).
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 (as defined) of the Senior Floating Rate Toggle
Notes due 2014 (the “Notes”):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
“144A Global Note” means a Global Note substantially in the form of Exhibit A1 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.
“Acquisition” means the acquisition of GNC Parent Corporation pursuant to the Acquisition
Agreement.
“Acquisition Agreement” means the Agreement and Plan of Merger, dated February 8, 2007 by and
among GNC Acquisition Holding Inc., a Delaware corporation, GNC Acquisition Inc. and GNC Parent
Corporation, as in effect on the date of this
Indenture.
“Additional Assets” means:
(l) any property or assets (other than assets that would be classified as short-term,
in accordance with GAAP) to be used by the Company or a Restricted Subsidiary in a Related
Business;
(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 another Restricted Subsidiary;
provided that such Restricted Subsidiary is primarily engaged in a Related Business;
(3) Capital Stock of any Person that at such time is a Restricted Subsidiary, acquired
from a third party; provided that such Restricted Subsidiary is primarily engaged in a
Related Business; and
(4) Capital Stock or Indebtedness of any Person which is primarily engaged in a Related
Business; provided, however, for purposes of Section 4.10 hereof, the aggregate amount of
Net Proceeds permitted to be invested pursuant to this clause (4) shall not exceed at any
one time outstanding 2.5% of Consolidated Tangible Assets.
“Additional Notes” means additional Notes, including Additional Toggle Notes, (other than the
Initial Notes) issued under this Indenture in accordance with Sections 2.02 and 2.13 hereof, and as
permitted by Section 4.01 and 4.09 hereof, as part of the same series as the Initial Notes.
1
“Additional Toggle Notes” means additional Toggle Notes (other than the Initial Notes and
other than Exchange Notes issued for such Initial Notes) issued from time to time under this
Indenture in accordance with Sections 2.01 and 4.10 hereof.
“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 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. No Person (other than the Company or any
Subsidiary of the Company) in whom a Receivables Subsidiary makes an Investment in connection with
a Qualified Receivables Transaction will be deemed to be an Affiliate of the Company or any of its
Subsidiaries solely by reason of such Investment.
“Applicable LIBOR Rate” means for each interest period with respect to the Notes, the rate
determined by the Company (notice of such rate to be sent to the Trustee on the date of
determination thereof) equal to the greater of (a) 1.250% or (b) the applicable British Bankers’
Association LIBOR rate for deposits in U.S. dollars for a period of six months as reported by any
generally recognized financial information service as of 11:00 a.m. (London time) two business days
prior to the first day of such interest period; provided, that, if no such British Bankers’
Association LIBOR rate is available to the Company, the Applicable LIBOR Rate for the relevant
interest period shall instead be the rate at which JPMorgan Chase Bank N.A. or one of its affiliate
banks offers to place deposits in U.S. dollars with first-class banks in the London interbank
market for a period of six months as of approximately 11:00 a.m. (London time) two business days
prior to the first day of such interest period, in amounts equal to $1.0 million.
“Agent” means any Registrar, co-registrar, Paying Agent or additional Paying Agent.
“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, Euroclear and Clearstream
that apply to such transfer or exchange.
“Asset Sale” means any sale, lease, transfer or other disposition of shares of Capital Stock
of a Restricted Subsidiary, other than directors’ qualifying shares, 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 sale 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 a Restricted Subsidiary;
(2) a disposition in the ordinary course of business of inventory, equipment, obsolete
or surplus assets or other assets no longer used or useful in the conduct of the business of
the Company and its Restricted Subsidiaries;
(3) the sale of Cash Equivalents in the ordinary course of business;
(4) a transaction or a series of related transactions in which the Fair Market Value of
the assets disposed of, in the aggregate, does not exceed $5.0 million;
2
(5) the sale or discount, with or without recourse, and on commercially reasonable
terms, of accounts receivable or notes receivable arising in the ordinary course of
business, or the conversion or exchange of accounts receivable for notes receivable;
(6) the licensing of intellectual property in the ordinary course of business;
(7) for purposes of Section 4.10 hereof only, a disposition subject to the provisions
of Section 4.07 hereof;
(8) a disposition of property or assets that is governed by the provisions of Section
5.01 hereof;
(9) the sale of franchisee accounts receivable and related assets of the type specified
in the definition of “Qualified Receivables Transaction” to a Receivables Subsidiary for the
fair market value thereof, including cash in an amount at least equal to 75% of the book
value thereof as determined in accordance with GAAP, it being understood that, for the
purposes of this clause (9), Notes received in exchange for the transfer of franchisee
accounts receivable and related assets will be deemed cash if the Receivables Subsidiary or
other payor is required to repay said Notes as soon as practicable from available cash
collections less amounts required to be established as reserves pursuant to contractual
agreements with entities that are not Affiliates of the Company entered into as part of a
Qualified Receivables Transaction;
(10) the transfer of franchise accounts receivable and related assets of the type
specified in the definition of “Qualified Receivables Transaction” (or a fractional
undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables
Transaction;
(11) any surrender or waiver of contract rights or the settlement release or surrender
of contract, tort or other litigation claims in the ordinary course of business;
(12) the granting of Liens (and foreclosure thereon) not prohibited by this Indenture;
(13) the closure and disposition of retail stores or distribution centers and any sales
of a store owned by the Company to a franchisee, in each case in the ordinary course of
business;
(14) any sale of Capital Stock in, or Indebtedness or other securities of, an
Unrestricted Subsidiary; and
(15) any sublease of real property by the Company or any Restricted Subsidiary to a
franchisee in the ordinary course of business.
“Asset Sale Offer” has the meaning assigned to that term in this Indenture.
“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 the numbers 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 such Indebtedness or Preferred Stock multiplied by the
amount of such payment; by
(2) the sum of all such payments.
3
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.
“Board of Directors” means the board of directors of the Company or any committee thereof duly
authorized to act on behalf of such board, unless the context indicates reference to the board of
directors of a Person other than the Company, in which event such reference shall be to the board
of directors of the Person to whom such reference is made, or any committee thereof duly authorized
to act on behalf of such board.
“Borrowing Base” means, as of any date, an amount equal to:
(1) 85% of the face amount of all accounts receivable owned by the Company and its
Restricted Subsidiaries as of the end of the most recent fiscal quarter preceding such date
that were not more than 90 days past due; provided, however, that any accounts receivable
owned by a Receivables Subsidiary, or that the Company or any of its Subsidiaries has agreed
to transfer to a Receivables Subsidiary, shall be excluded for purposes of determining such
amount; plus
(2) 50% of the book value of all inventory, net of reserves, owned by the Company and
its Restricted Subsidiaries as of the end of the most recent fiscal quarter preceding such
date.
“Broker Dealer” has the meaning set forth in the Registration Rights Agreement.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial
banking institutions are authorized or required by law to close in
New York City or Chicago,
Illinois.
“Capital Stock” of any Person means any and all shares, 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.
“Cash Equivalents” means any of the following:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided that
the full faith and credit of the United States is pledged in support of those securities)
having maturities of not more than one year from the date of acquisition;
(3) certificates of deposit 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 lender party to the Company’s
senior credit facility or with any domestic commercial bank having capital and surplus in
excess of $500.0 million and a Thomson Bank Watch Rating of “B” or better;
4
(4) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest ratings obtainable from Moody’s or
S&P and, in each case, maturing within one year after the date of acquisition; and
(6) money market funds at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in clauses (1) through (5) of this definition.
“Change of Control” means:
(1) any event occurs the result of which is that any “Person,” as such term is used in
Sections 13(d) and 14(d) of the Exchange Act, other than any Permitted Holder or any of its
Related Parties or a Permitted Group, becomes the beneficial owner, as defined in Rules
13d-3 and 13d-5 under the Exchange Act (except that a Person shall be deemed to have
“beneficial ownership” of all shares that any such Person has the right to acquire within
one year) directly or indirectly, of more than 50% of the Voting Stock of the Company,
including, without limitation, through a merger or consolidation or purchase of Voting Stock
of the Company; provided that the Permitted Holders or their Related Parties do not have the
right or ability by voting power, contract or otherwise to elect or designate for election a
majority of the Board of Directors of the Company;
(2) after an Equity Offering that is an initial public offering of Capital Stock of the
Company, during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company, together with any new
directors whose election by such Board of Directors or whose nomination for election by the
stockholders of the Company was approved by a vote of a majority of the directors of the
Company then still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved, cease for any reason
to constitute a majority of the Board of Directors of the Company then in office;
(3) the sale, lease, transfer, conveyance or other sale, in one or a series of related
transactions other than a merger or consolidation, of all or substantially all of the assets
of the Company and its Restricted Subsidiaries taken as a whole to any Person or group of
related Persons other than a Permitted Holder or a Related Party of a Permitted Holder; or
(4) the adoption of a plan relating to the liquidation or dissolution of the Company.
“Clearstream” means Clearstream Banking, S.A.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” means General Nutrition Centers, Inc., and any and all successors thereto.
“Consolidated Coverage Ratio” as of any date of determination means the ratio of
(1) the aggregate amount of EBITDA of the Company and its Restricted Subsidiaries for
the period of the most recent four consecutive fiscal quarters ending prior to the date of
such determination for which internal financial statements of the Company are available, to
5
(2) Consolidated Interest Expense of the Company for such four fiscal quarters;
provided, however, that:
(a) if the Company or any Restricted Subsidiary:
(i) has Incurred any Indebtedness since the beginning of such period
that remains outstanding on such date of determination or if the transaction
giving rise to the need to calculate the Consolidated Coverage Ratio is an
Incurrence of Indebtedness, EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving effect on a pro forma basis to
such Indebtedness (including the use of the proceeds therefrom) as if such
Indebtedness had been Incurred on the first day of such period, except that
in making such computation, the amount of Indebtedness under any revolving
Credit Facility outstanding on the date of such calculation shall be
computed based on:
(A) the average daily balance of such Indebtedness during such
four fiscal quarters or such shorter period for which such facility
was outstanding; or
(B) if such facility was created after the end of such four
fiscal quarters, the average daily balance of such Indebtedness
during the period from the date of creation of such facility to the
date of such calculation, and 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; or
(ii) has repaid, repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of the period that is no longer outstanding
on such date of determination, or if the transaction giving rise to the need
to calculate the Consolidated Coverage Ratio involves a discharge of
Indebtedness, in each case other than Indebtedness Incurred under any
revolving Credit Facility unless such Indebtedness has been permanently
repaid, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such discharge of
such Indebtedness, including 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 Restricted Subsidiary has
made any Asset Sale of any company or any business or any business segment, the EBITDA for
such period shall be reduced by an amount equal to the EBITDA, if positive, directly
attributable to the company, business or business segment that are the subject of such Asset
Sale for such period or increased by an amount equal to the EBITDA, if negative, directly
attributable thereto for such period and Consolidated Interest Expense for such period shall
be reduced by an amount equal to the Consolidated Interest Expense directly attributable to
any Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased, defeased
or otherwise discharged with respect to the Company and its continuing Restricted
Subsidiaries in connection with such Asset Sale for such period, and, if the Capital Stock
of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period
directly attributable to the Indebtedness of such Restricted Subsidiary to the extent the
Company and its continuing
6
Restricted Subsidiaries are no longer liable for, or are indemnified from, such
Indebtedness after such sale;
(c) if since the beginning of such period the Company or any Restricted Subsidiary, by
merger or otherwise, has made an Investment in any Person that thereby becomes a Restricted
Subsidiary, or otherwise acquired any company or any business or any group of assets,
including any such acquisition of assets occurring in connection with a transaction causing
a calculation to be made hereunder, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto, including the Incurrence of any
Indebtedness and including all Pro Forma Cost Savings, as if such Investment or acquisition
had occurred on the first day of such period; and
(d) if since the beginning of such period any Person that subsequently became a
Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such period, has made any Asset Sale or any 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 during such period, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro forma effect thereto,
including the Incurrence of any Indebtedness and including all Pro Forma Cost Savings, as if
such Asset Sale, Investment or acquisition had occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to an Asset Sale,
Investment or acquisition of assets, or any transaction governed by the provisions of Section 5.01
hereof or the amount of income or earnings relating thereto and the amount of Consolidated Interest
Expense associated with any Indebtedness Incurred or repaid, repurchased, defeased or otherwise
discharged in connection therewith, the pro forma calculations in respect thereof shall be as
determined in good faith by a responsible financial or accounting officer of the Company, based on
reasonable assumptions. If any Indebtedness bears a floating rate of interest and is being given
pro forma effect, the interest expense on such Indebtedness shall be calculated at a fixed rate as
if the rate in effect on the date of determination had been the applicable rate for the entire
period, taking into account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term as at the date of determination in excess of 12
months. If any Indebtedness bears, at the option of the Company or a Restricted Subsidiary, a fixed
or floating rate of interest and is being given pro forma effect, the interest expense on such
Indebtedness shall be computed by applying, at the option of the Company or such Restricted
Subsidiary, either a fixed or floating rate. If any Indebtedness which is being given pro forma
effect was Incurred under any revolving Credit Facility, the interest expense on such Indebtedness
shall be computed based upon the average daily balance of such Indebtedness during the applicable
period.
“Consolidated Interest Expense” means, as to any Person, for any period, the total
consolidated interest expense of such Person and its Restricted Subsidiaries determined in
accordance with GAAP, minus, to the extent included in such interest expense, amortization or
write-off of financing costs plus, to the extent Incurred by such Person and its Restricted
Subsidiaries in such period but not included in such interest expense, without duplication:
(1) interest expense attributable to Capitalized Lease Obligations determined as if
such lease were a capitalized lease, in accordance with GAAP;
(2) amortization of debt discount;
7
(3) interest in respect of Indebtedness of any other Person that has been Guaranteed by
such Person or any Restricted Subsidiary, but only to the extent that such interest is
actually paid by such Person or any Restricted Subsidiary;
(4) non-cash interest expense;
(5) net costs associated with Hedging Obligations;
(6) mandatory Preferred Stock cash dividends in respect of all Preferred Stock of
Restricted Subsidiaries of such Person and Disqualified Stock of such Person held by Persons
other than such Person or a Restricted Subsidiary; and
(7) 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 to any Person,
other than the referent Person or any Subsidiary thereof, in connection with Indebtedness
Incurred by such plan or trust; provided, however, that as to the Company, there shall be
excluded therefrom any such interest expense of any Unrestricted Subsidiary to the extent
the related Indebtedness is not Guaranteed or paid by the Company or any Restricted
Subsidiary.
For purposes of the foregoing, gross interest expense shall be determined after giving effect
to any net payments made or received by such Person and its Subsidiaries with respect to Interest
Rate Agreements.
“Consolidated Net Income” means, as to any Person, for any period, the consolidated net income
(loss) of such Person and its Subsidiaries before preferred stock dividends, determined in
accordance with GAAP; provided, however, that there shall not be included in such Consolidated Net
Income:
(1) any net income (loss) of any Person if such Person is not (as to the Company) a
Restricted Subsidiary and, as to any other Person, an unconsolidated Person, except that:
(a) the referent Person’s equity in the net income of any such Person for such
period shall be included in such Consolidated Net Income up to the aggregate amount
of cash actually distributed by such Person during such period to the referent
Person or a Subsidiary as a dividend or other distribution, subject, in the case of
a dividend or other distribution to a Subsidiary, to the limitations contained in
clause (3) below, and
(b) the net loss of such Person shall be included to the extent funded by the
referent Person or any of its Restricted Subsidiaries;
(2) any extraordinary, unusual or non-recurring gain, loss or expense (together with
any provision for taxes related thereto);
(3) the cumulative effect of a change in accounting principles;
(4) any reduction to the Consolidated Net Income of any Person caused by the amount,
if any, of (a) non-cash charges relating to the exercise of options and (b) non-cash losses
(or minus non-cash gains) from foreign currency translation;
(5) any gain (or loss), together with any related provision for taxes on such gain (or
loss), realized in connection with any asset sale (other than in the ordinary course of
business);
8
(6) non-cash compensation charges, including any such charges arising from stock
options, restricted stock grants or other equity-incentive programs;
(7) any net after-tax gains or losses (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of Indebtedness;
(8) the effect of any non-cash items resulting from any amortization, write-up,
write-down or write-off of assets (including intangible assets, goodwill and deferred
financing costs) in connection with the Merger Transactions or any future acquisition,
merger, consolidation or similar transaction (excluding any such non-cash item to the extent
that it represents an accrual of or reserve for cash expenditures in any future period
except to the extent such item is subsequently reversed);
(9) any non-cash impairment charges resulting from the application of Statement of
Financial Accounting Standards Nos. 142 and 144 and the amortization of intangibles arising
pursuant to No. 141;
(10) unrealized gains and losses relating to hedging transactions and xxxx-to-market
Indebtedness denominated in foreign currencies resulting from the application of Statement
of Financial Accounting Standards No. 52; and
(11) fees, expenses and charges in connection with the Merger Transactions.
“Consolidated Secured Debt” means, as of any date, the sum of:
(1) the aggregate amount required to be shown on a consolidated balance sheet of the
Company and its Restricted Subsidiaries as of such date in respect of Indebtedness that is
secured by a Lien on any property or assets of the Company or any of its Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP; and
(2) to the extent not required to be shown on a consolidated balance sheet of the
Company and its Restricted Subsidiaries as of such date, the face amount of all letters of
credit outstanding as of such date under any Credit Facility that is secured by a Lien on
any property or assets of the Company or any of its Restricted Subsidiaries as of such date.
“Consolidated Secured Leverage Ratio” means, as of any date, the ratio of (1) the Consolidated
Secured Debt of the Company outstanding on such date after giving effect to all Incurrences and
repayments of Indebtedness made or to be made on such date to (2) the EBITDA of the Company for the
most recently ended four full fiscal quarters ending prior to the date of such determination for
which internal financial statements of the Company are available.
In addition, for purposes of calculating the Consolidated Senior Leverage Ratio:
(1) if on such date of determination or since the beginning of such period the Company or
any Restricted Subsidiary is making or has made any Asset Sale of any company or any business or
any business segment, the EBITDA for such period shall be reduced by an amount equal to the
EBITDA, if positive, directly attributable to the company, business or business segment that is
the subject of such Asset Sale for such period or increased by an amount equal to the EBITDA, if
negative, directly attributable thereto for such period;
9
(2) if on such date of determination or since the beginning of such period the Company or
any Restricted Subsidiary, by merger or otherwise, is making or has made an Investment in any
Person that thereby becomes a Restricted Subsidiary, or otherwise is acquiring or has acquired
any company or any business or any group of assets, including any such acquisition of assets
occurring in connection with a transaction causing a calculation to be made hereunder, EBITDA
for such period shall be calculated after giving pro forma effect thereto, including all Pro
Forma Cost Savings, as if such Investment or acquisition had occurred on the first day of such
period; and
(3) if since the beginning of such period any Person that subsequently became a Restricted
Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the
beginning of such period, has made any Asset Sale or any Investment or acquisition of assets
that would have required an adjustment pursuant to clause (1) or (2) above if made by the
Company or a Restricted Subsidiary during such period, EBITDA for such period shall be
calculated after giving pro forma effect thereto, including the Incurrence of any Indebtedness
and including all Pro Forma Cost Savings, as if such Asset Sale, Investment or acquisition had
occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to an Asset Sale,
Investment or acquisition of assets, or any transaction governed by Section 5.01 of this Indenture,
or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof
shall be as determined in good faith by a responsible financial or accounting officer of the
Company, based on reasonable assumptions.
“Consolidated Tangible Assets” means, as of any date of determination, the total assets, less
goodwill and other intangibles, other than patents, trademarks, copyrights, licenses and other
intellectual property, shown on the balance sheet of the Company and its Restricted Subsidiaries as
of the most recent date for which such a balance sheet is available, determined on a consolidated
basis in accordance with GAAP less all write-ups, other than write-ups in connection with
acquisitions, subsequent to the date of this Indenture in the book value of any asset, except any
such intangible assets, owned by the Company or any of its Restricted Subsidiaries.
“Contribution Indebtedness” means Indebtedness of the Company or any Guarantor in an aggregate
principal amount not greater than the aggregate amount of cash contributions made to the common
equity capital of the Company after the date of this Indenture; provided that such Contribution
Indebtedness (a) is incurred within 180 days after the making of such cash contributions and (b) is
so designated as Contribution Indebtedness pursuant to an Officer’s Certificate on the Incurrence
date thereof. Any equity contribution that forms the basis of an Incurrence of Contribution
Indebtedness will be disregarded for purposes of the calculations called for by Section 4.07(a) of
this Indenture and will not be considered to be an Equity Offering (for purposes of Section 3.07 of
this Indenture) or an Excluded Contribution.
“Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in
Section 12.02 hereof 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
Company’s senior credit facility) or commercial paper facilities, in each case, with banks or other
institutional lenders providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or
refinanced (including by means of sales of debt securities to institutional investors) in whole or
in part from time to time.
10
“Currency Agreement” means, as to any Person, any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement, including derivative agreements or
arrangements, as to which such Person is a party or a beneficiary.
“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.
“Default” means any event or condition that 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 hereof, substantially in the form of Exhibit A1 hereto
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, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and
any and all successors thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.
“Disqualified Stock” means, with respect to any Person, any Capital Stock that by its terms,
or by the terms of any security into which it is convertible or for which it is exchangeable or
exercisable, or upon the happening of any event:
(1) matures or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise;
(2) is convertible or exchangeable for Indebtedness or Disqualified Stock; or
(3) is redeemable at the option of the Holder thereof, in whole or in part;
in the case of clauses (1), (2) and (3), prior to the 91st day after the Stated Maturity of the
Notes. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified
Stock solely because the holders of the Capital Stock have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a Change of Control or asset sale will not
constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not
repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with the provisions of Section 4.07 hereof.
“Domestic Subsidiary” means any Restricted Subsidiary of the Company that was formed under the
laws of the United States or any state of the United States or the District of Columbia or that
Guarantees or otherwise provides direct credit support for any Indebtedness of the Company.
“EBITDA” means, as to any Person, for any period, the Consolidated Net Income for such period,
plus the following to the extent included in calculating such Consolidated Net Income:
(1) income tax expense;
(2) Consolidated Interest Expense (including the amortization of any debt issuance
costs to the extent such costs are included in the calculation of Consolidated Interest
Expense);
11
(3) depreciation expense;
(4) amortization expense (including the amortization of any debt issuance costs to the
extent such costs are included in the calculation of Consolidated Interest Expense);
(5) other non-cash charges or non-cash losses;
(6) any reasonable expenses or charges incurred in connection with any Equity Offering,
Permitted Investment, acquisition, recapitalization or Indebtedness permitted to be incurred
under this Indenture (in each case whether or not consummated) or pursuant to the Merger
Transactions;
(7) the amount of any restructuring charges or reserves (which, for the avoidance of
doubt, shall include retention, severance, systems establishment cost, excess pension
charges, contract termination costs, including future lease commitments, and costs to
consolidate facilities and relocate employees);
(8) the amount of management, monitoring, consulting, advisory fees, termination
payments and related expenses paid pursuant to the Management Agreement; and
(9) any net after-tax income or loss from discontinued operations and any net after-tax
gains or losses on disposal of discontinued operations.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).
“Equity Offering” means any issuance or sale of Capital Stock (other than Disqualified Stock
and other than to the Company or any of its Subsidiaries), or a contribution to the equity capital
(other than by a Subsidiary of the Company or an Excluded Contribution), of the Company.
“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Notes” means, with respect to a series of notes, the registered notes that will be
exchanged for the Notes, pursuant to the terms of the Registration Rights Agreement, having
substantially the same terms as such Notes.
“Exchange Offer” has the meaning set forth in the Registration Rights Agreement.
“Exchange Offer Registration Statement” has the meaning set forth in the Registration Rights
Agreement.
“Excluded Contributions” means net cash proceeds, marketable securities or Qualified Proceeds,
in each case received by the Company from (a) contributions to its common equity capital; and (b)
the sale (other than to a Subsidiary or to any management equity plan or stock option plan or any
other management or employee benefit plan or agreement of the Company or any Subsidiary) of Capital
Stock (other than Disqualified Stock), in each case designated as Excluded Contributions pursuant
to an officer’s certificate. Excluded Contributions will not be permitted to be used as a basis
for Incurring Contribution Indebtedness or for the purpose of permitting any Restricted Payment,
other than pursuant to clause (14) of paragraph (b) under Section 4.07 of this Indenture. Also,
Excluded Contributions will not be considered an “Equity Offering” for purposes of Section 3.07 of
this Indenture.
12
“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either party, determined in
good faith by the Board of Directors of the Company.
“Foreign Subsidiary” means any Restricted Subsidiary of the Company that is not a Domestic
Subsidiary.
“GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time, for all other purposes 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 approved by a significant
segment of the accounting profession.
“Global Note Legend” means the legend set forth in Section 2.06(g)(2) hereof, 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 deposited with or on behalf of and registered in the name of the
Depository or its nominee, substantially in the form of Exhibit A1 hereto and that bears the Global
Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached
thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or 2.06(f)
hereof.
“Government Obligations” means direct obligations of, or obligations guaranteed by, the United
States of America, and the payment for which the United States pledges its full faith and credit.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness, including any such 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 or such other obligation 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 or other obligation 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 deposits made in the ordinary course of
business.
The term “Guarantee” used as a verb has a correlative meaning.
“Guarantor” means
(1) the Company’s direct and indirect Domestic Subsidiaries existing on the date of
this Indenture; and
(2) any Domestic Subsidiary created or acquired by the Company after the date of this
Indenture, other than any Immaterial Subsidiary, that becomes a Guarantor pursuant to the
provisions of this Indenture.
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“Hedging Obligations” of any Person means the obligations of such Person pursuant to any
Interest Rate Agreement or Currency Agreement.
“Holder” means a Person in whose name a Note is registered.
“IAI Global Note” means a Global Note substantially in the form of Exhibit A1 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.
“Immaterial Subsidiary” means, as of any date, any Restricted Subsidiary whose total assets,
as of that date, are less than $2.0 million and whose total revenues for the most recent 12-month
period do not exceed $2.0 million; provided that a Restricted Subsidiary will not be considered to
be an Immaterial Subsidiary if it, directly or indirectly, guarantees or otherwise provides direct
credit support for any Indebtedness of the Company.
“Incur” means issue, assume, enter into any Guarantee of, 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 Subsidiary, whether by merger, consolidation, acquisition or otherwise, shall
be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary. Any Indebtedness
issued at a discount, including Indebtedness on which interest is payable through the issuance of
additional Indebtedness, shall be deemed Incurred at the time of original issuance of the
Indebtedness at the initial accreted amount thereof.
“Indebtedness” means, with respect to any Person on any date of determination, without
duplication:
(1) the principal of Indebtedness of such Person for borrowed money if and to the
extent it would appear as a liability upon the consolidated balance sheet of such Person
prepared in accordance with GAAP;
(2) the principal of obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments if and to the extent it would appear as a liability upon the
consolidated balance sheet of such Person prepared in accordance with GAAP;
(3) all reimbursement obligations of such Person, including reimbursement obligations
in respect of letters of credit or other similar instruments, the amount of such obligations
being equal at any time to the aggregate then undrawn and unexpired amount of such letters
of credit or other instruments plus the aggregate amount of drawings thereunder that have
not then been reimbursed;
(4) all obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except Trade Payables, which purchase price is due more than one year
after the date of placing such property in final service or taking final delivery and title
thereto or the completion of such services if and to the extent it would appear as a
liability upon the consolidated balance sheet of such Person prepared in accordance with
GAAP;
(5) all Capitalized Lease Obligations of such Person;
(6) the redemption, repayment or other repurchase amount of such Person with respect to
any Disqualified Stock or, if such Person is a Subsidiary of the Company, any Preferred
Stock of
14
such Subsidiary, but excluding, in each case, any accrued dividends, the amount of
such obligation to be equal at any time to the maximum fixed involuntary redemption,
repayment or repurchase price for such Capital Stock, or if such Capital Stock has no fixed
price, to the involuntary redemption, repayment or repurchase price therefor calculated in
accordance with the terms thereof as if then redeemed, repaid or repurchased, and if such
price is based upon or measured by the fair market value of such Capital Stock, such fair
market value shall be as determined in good faith by the Board of Directors of such Person
or the board of directors of the issuer of such Capital Stock;
(7) 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; provided, however, that the
amount of Indebtedness of such Person shall be the lesser of:
(a) the fair market value of such asset at such date of determination; and
(b) the amount of such Indebtedness of such other Persons;
(8) all Indebtedness of other Persons to the extent Guaranteed by such Person;
(9) to the extent not otherwise included in this definition, net Hedging Obligations of
such Person, such obligations to be equal at any time to the termination value of such
agreement or arrangement giving rise to such Hedging Obligation that would be payable by
such Person at such time; and
(10) the aggregate liquidation preference of any Preferred Stock issued by any
Restricted Subsidiary of the Company (other than to the Company or another Restricted
Subsidiary).
The amount of Indebtedness of any Person at any date shall be determined as set forth above or
otherwise provided in this Indenture, or otherwise in accordance with GAAP.
“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 first $300,000,000 aggregate principal amount of Notes issued under
this Indenture on the date hereof.
“Initial Purchasers” means X.X. Xxxxxx Securities Inc., Xxxxxxx, Sachs & Co, Xxxxxx Brothers
Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, BNP Paribas Securities Corp. and UBS
Securities LLC.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as
defined in Rule 501(a)(1), (2), (3), (7) or (8) under the Securities Act, who are not also QIBs.
“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, including derivative agreements or
arrangements, as to which such Person is party or a beneficiary.
15
“Investment” in any Person by any other Person means any direct or indirect advance, loan or
other extension of credit (other than to customers, suppliers, directors, officers or employees of
any Person in the ordinary course of business) 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. If the Company or any Restricted Subsidiary of the Company
sells or otherwise disposes of any Capital Stock of any direct or indirect Restricted Subsidiary of
the Company such that, after giving effect to any such sale or disposition, such entity is no
longer a Subsidiary of the Company, the Company shall be deemed to have made an Investment on the
date of any such sale or disposition equal to the fair market value of the Capital Stock of such
Subsidiary not sold or disposed of.
“Letter of Transmittal” means the letter of transmittal to be prepared by the Company and sent
to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind,
including any conditional sale or other title retention agreement or lease in the nature thereof.
“Management Agreement” means the Management Services Agreement, to be dated the closing date
of the Acquisition, by and between the Company and GNC Acquisition Holdings Inc., as in effect on
the date of this Indenture.
“Moody’s” means Xxxxx’x Investors Service, Inc., and its successors.
“Net Proceeds” from an Asset Sale 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, but excluding any other consideration received in the
form of assumption by the acquiring person of Indebtedness or other obligations relating to the
properties or assets that are the subject of such Asset Sale or received in any other noncash form,
therefrom, in each case net of:
(1) all legal, title and recording tax expenses, commissions and other fees and
expenses incurred, including, without limitation, fees and expenses of legal counsel,
accountants and financial advisors, and all Federal, state, provincial, foreign and local
taxes required to be paid or accrued as a liability under GAAP, as a consequence of such
Asset Sale;
(2) all payments made on any Indebtedness that is secured by any assets subject to such
Asset Sale, in accordance with the terms of any Lien upon such assets, or that must by its
terms, or in order to obtain a necessary consent to such Asset Sale, or by applicable law be
repaid out of the proceeds from such Asset Sale;
(3) all distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Sale or to any other
Person, other than the Company or any Restricted Subsidiary, owning a beneficial interest in
the assets disposed of in such Asset Sale; and
(4) 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 Sale and
retained by the Company or any Restricted Subsidiary after such Asset Sale.
“Non-Recourse Debt” means Indebtedness:
16
(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 or otherwise; and
(2) no default with respect to which, including any rights that the holders thereof may
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.
“note guarantee” means, individually, any Guarantee of payment of the Notes by a Guarantor
pursuant to the terms of this Indenture and, collectively, all such note guarantees. Each such
note guarantee will be in the form prescribed in this Indenture.
“Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes
and the Additional Notes (and, in each case, any Exchange Notes issued in exchange therefore) shall
be treated as a single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Initial Notes and any Additional
Notes (and, in each case, any Exchange Notes issued in exchange therefore).
“Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.
“Offering Memorandum” means the Company’s final offering memorandum, dated March 7, 2007
related to the issuance and sale of the Initial Notes.
“Officer” means the Chief Executive Officer, President, Chief Financial Officer, any Vice
President, Controller, Secretary or Treasurer of the Company.
“Officer’s Certificate” means a certificate signed by at least one Officer and that meets the
requirements of Section 12.05 hereof.
“Opinion of Counsel” means a written opinion from legal counsel satisfactory to the Trustee
and that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or
counsel to the Company or the Trustee.
“Parent” means GNC Parent Corporation, a Delaware corporation, and its successors and assigns.
“Partial PIK Interest” has the meaning set forth in Section 2.01 herein.
“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to
DTC, shall include Euroclear and Clearstream).
17
“Permitted Group” means any group of investors that is deemed to be a “person” (as that term
is used in Section 13(d)(3) of the Exchange Act) at any time prior to the Company’s initial public
offering of common stock, by virtue of the Stockholders Agreement, as the same may be amended,
modified or supplemented from time to time; provided that no single Person (other than the
Permitted Holders and their Related Parties) beneficially owns (together with its Affiliates) more
of the Voting Stock of the Company that is beneficially owned by such group of investors than is
then collectively beneficially owned by the Permitted Holders and their Related Parties in the
aggregate.
“Permitted Holder” means Ares Corporate Opportunities Fund II, L.P., Ares Management, Inc.,
Ares Management LLC and Ontario Teachers’ Pension Plan Board.
“Permitted Investment” means:
(1) any Investment by the Company or any Restricted Subsidiary in a Restricted
Subsidiary, the Company or a Person that will, upon the making of such Investment, become a
Restricted Subsidiary;
(2) any Investment by the Company or any Restricted Subsidiary in another Person if as
a result of such Investment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Company or a Restricted
Subsidiary;
(3) any Investment by the Company or any Restricted Subsidiary in Cash Equivalents;
(4) any Investment by the Company or any Restricted Subsidiary in receivables owing to
the Company or any Restricted Subsidiary, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms; provided,
however, that such trade terms may include such concessionary trade terms as the Company or
any such Restricted Subsidiary deems reasonable under the circumstances;
(5) any Investment by the Company or any Restricted Subsidiary in securities or other
Investments received as consideration in sales or other sales of property or assets made in
compliance with the provisions of Section 4.10 hereof;
(6) any Investment by the Company or any Restricted Subsidiary in securities or other
Investments received in settlement of debts created in the ordinary course of business and
owing to the Company or any Restricted Subsidiary, or as a result of foreclosure, perfection
or enforcement of any Lien, or in satisfaction of judgments, including in connection with
any bankruptcy proceeding or other reorganization of another Person;
(7) Investments in existence or made pursuant to legally binding written commitments in
existence on the date of this Indenture;
(8) any Investment by the Company or any Restricted Subsidiary in Hedging Obligations,
which obligations are Incurred in compliance with the provisions of Section 4.09 hereof;
(9) any Investment by the Company or any Restricted Subsidiary in pledges or deposits:
(a) with respect to leases or utilities provided to third parties in the
ordinary course of business; or
(b) otherwise described in the definition of “Permitted Liens;”
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(10) loans by the Company or any Restricted Subsidiary to franchisees in an aggregate
principal amount not to exceed $75.0 million at any one time outstanding;
(11) the acquisition by a Receivables Subsidiary in connection with a Qualified
Receivables Transaction of Capital Stock of a trust or other Person established by such
Receivables Subsidiary to effect such Qualified Receivables Transaction; and any other
Investment by the Company or a Restricted Subsidiary of the Company in a Receivables
Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection
with a Qualified Receivables Transaction; provided that such other Investment is in the form
of a note or other instrument that the Receivables Subsidiary or other Person is required to
repay as soon as practicable from available cash collections less amounts required to be
established as reserves pursuant to contractual agreements with entities that are not
Affiliates of the Company entered into as part of a Qualified Receivables Transaction;
(12) any Investment in exchange for, or out of the Net Proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company or an employee stock ownership
plan or similar trust) of Capital Stock of the Company (other than Disqualified Stock);
provided that the amount of any Net Proceeds that are utilized for any such Investment will
be excluded from clause 3(B) of Section 4.07(a) hereof; provided, however, that the value of
any non-cash net proceeds shall be as conclusively determined by the Board of Directors of
the Company in good faith;
(13) any sublease of real property to a franchisee, any advertising cooperative with
franchisees and any trade credit extended to franchisees, in each case in the ordinary
course of business;
(14) any Investments received in compromise or resolution of (a) obligations of trade
creditors or customers that were incurred in the ordinary course of business of the Company
or any Restricted Subsidiary, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (b)
litigation, arbitration or other disputes with Persons who are not Affiliates;
(15) loans or advances to employees made in the ordinary course of business of the
Company or any Restricted Subsidiary in an aggregate principal amount not to exceed $5.0
million at any one time outstanding;
(16) Investments consisting of licensing of intellectual property pursuant to joint
marketing arrangements with other Persons;
(17) Investments of a Restricted Subsidiary of the Company acquired after the date of
this Indenture or of an entity merged into, amalgamated with, or consolidated with a
Restricted Subsidiary of the Company in a transaction that is permitted by this Indenture to
the extent that such Investments were not made in contemplation of such acquisition, merger,
amalgamation or consolidation and were in existence on the date of such acquisition, merger,
amalgamation or consolidation;
(18) any Investment existing on the date of this Indenture and any modification,
replacement, renewal or extension thereof; provided, however, that the amount of any such
Investment may be increased (x) as required by the terms of such Investment as in existence
on the date of this Indenture or (y) as otherwise permitted under this Indenture;
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(19) any Investments representing amounts held for employees of the Company and its
Restricted Subsidiaries under the Company’s deferred compensation plan; provided that the
amount of such Investments (excluding income earned thereon) shall not exceed the amount
otherwise payable to such employees the payment of which was deferred under such plan and
any amounts matched by the Company under such plan; and
(20) other Investments not to exceed $50.0 million at any one time outstanding (with
each Investment being valued as of the date made and without giving effect to subsequent
changes in value).
“Permitted Liens” means:
(1) Liens on properties or assets of the Company or any of its Restricted Subsidiaries
securing Indebtedness under Credit Facilities that was permitted by the terms of this
Indenture to be Incurred, including any and all Liens securing all or any part of the
Indebtedness at any time and from time to time outstanding under the Company’s senior credit
facility; provided that the aggregate principal amount of outstanding Indebtedness secured
pursuant to Liens created under this clause (1) may not, at any date on which any such
Indebtedness or Liens are Incurred, exceed the greater of (x) the aggregate principal amount
of Indebtedness permitted to be Incurred pursuant to clause (1) of the definition of
Permitted Debt or (y) the maximum principal amount of Consolidated Secured Debt that will
not cause the Consolidated Secured Leverage Ratio of the Company to exceed 4.0 to 1.0;
(2) Liens for taxes, assessments or other governmental charges not yet delinquent or
the nonpayment of which in the aggregate would not be reasonably expected to have a material
adverse effect on the Company and its Restricted Subsidiaries, or that are being contested
in good faith and by appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or such Subsidiary, as the case may be, in accordance
with GAAP;
(3) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or
other like Liens arising in the ordinary course of business in respect of obligations that
are not overdue for a period of more than 60 days or that are bonded or that are being
contested in good faith and by appropriate proceedings;
(4) pledges, deposits or Liens in connection with workers’ compensation, unemployment
insurance and other social security legislation and/or similar legislation or other
insurance-related obligations, including, without limitation, pledges or deposits securing
liability to insurance carriers under insurance or self-insurance arrangements;
(5) pledges, deposits or Liens to secure the performance of bids, tenders, trade,
government or other contracts, other than for borrowed money, obligations and deposits for
or under or in respect of utilities, leases, licenses, statutory obligations, surety,
judgment and appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(6) easements, including reciprocal easement agreements, rights-of-way, building,
zoning and similar restrictions, utility agreements, covenants, reservations, restrictions,
encroachments, changes, and other similar encumbrances or title defects incurred, or leases
or subleases granted to others, in the ordinary course of business, which do not in the
aggregate materially interfere with the ordinary conduct of the business of the Company and
its Subsidiaries, taken as a whole;
20
(7) Liens existing on, or provided for underwritten arrangements existing on, the date
of this Indenture, or, in the case of any such Liens securing Indebtedness of the Company or
any of its Subsidiaries existing or arising under written arrangements existing on the date
of this Indenture, securing any Refinancing Indebtedness in respect of such Indebtedness so
long as the Lien securing such Refinancing Indebtedness is limited to all or part of the
same property or assets, plus improvements, accessions, proceeds or dividends or
distributions in respect thereof, that secured, or under such written arrangements could
secure, the original Indebtedness;
(8) Liens securing Hedging Obligations Incurred in compliance with the provisions of
Section 4.09 hereof;
(9) Liens arising out of judgments, decrees, orders or awards in respect of which the
Company shall in good faith be prosecuting an appeal or proceedings for review which appeal
or proceedings shall not have been finally terminated, or the period within which such
appeal or proceedings may be initiated shall not have expired and Liens arising from final
judgments only to the extent, in an amount and for a period not resulting in an Event of
Default with respect thereto;
(10) Liens existing on property or assets of a Person at the time such Person becomes a
Subsidiary of the Company, or at the time the Company or a Restricted Subsidiary acquires
such property or assets; provided, however, that such Liens are not created in connection
with, or in contemplation of, such other Person becoming such a Subsidiary, or such
acquisition of such property or assets, and that such Liens are limited to all or part of
the same property or assets, plus improvements, accessions, proceeds or dividends or
distributions in respect thereof, that secured, or, under the written arrangements under
which such Liens arose, could secure, the obligations to which such Liens relate;
(11) Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or
other obligations of such Unrestricted Subsidiary;
(12) Liens securing the Notes or the note guarantees;
(13) Liens on assets of the Company or a Receivables Subsidiary incurred in connection
with a Qualified Receivables Transaction;
(14) Liens securing Refinancing Indebtedness Incurred in respect of any Indebtedness
secured by, or securing any refinancing, refunding, extension, renewal or replacement, in
whole or in part, of any other obligation secured by, any other Permitted Liens; provided
that any such new Lien is limited to all or part of the same property or assets, plus
improvements, accessions, proceeds or dividends or distributions in respect thereof, that
secured, or, under the written arrangements under which the original Lien arose, could
secure, the obligations to which such Liens relate;
(15) survey exceptions, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real property that were
not incurred in connection with Indebtedness and that do not in the aggregate materially
adversely affect the value of said properties or materially impair their use in the
operation of the business of such Person;
(16) Liens to secure Indebtedness permitted by clause (7) of paragraph (b) of Section
4.09 hereof; provided that (a) any such Lien attaches to such assets concurrently with or
within
21
180 days after the acquisition, construction or capital improvement thereof, (b) such
Lien attaches solely to the assets so acquired, constructed or improved in such transaction
and (c) the principal amount of the Indebtedness secured thereby does not exceed 100% of the
cost of such assets;
(17) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods in the ordinary course of business;
(18) licenses of intellectual property granted in the ordinary course of business;
(19) Liens in favor of customs or revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods; and
(20) Liens in favor of the Company or any Restricted Subsidiary;
(21) Liens with respect to the assets of a Restricted Subsidiary that is not a
Guarantor securing Indebtedness of such Restricted Subsidiary incurred in accordance with
Section 4.09 hereof; and
(22) Other Liens securing Indebtedness in an aggregate principal amount not to exceed
$20.0 million at any one time outstanding.
“Permitted Payments to Parent” means, payments (directly or in the form of dividends, loans or
otherwise) to, a direct or indirect parent entity of the Company in amounts required for such
Person to pay:
(1) franchise taxes and other fees, taxes and expenses required to maintain its
corporate existence;
(2) for so long as the Company is a member of a group filing a consolidated, combined
or other similar group tax return with such Person, payments to such Person not to exceed
the amount of any relevant tax (including any penalties and interest) (“Tax Payments”) that
the Company would owe if the Company and its Subsidiaries were filing a separate tax return
(or a separate consolidated or combined return with its Subsidiaries that are members of the
consolidated or combined group), taking into account any carryovers and carrybacks of tax
attributes (such as net operating losses) of the Company and such Subsidiaries from other
taxable years (as reduced by the use of such carryovers and carrybacks by the group of which
such Person is a member). Any Tax Payments received from the Company shall, to the extent
not already paid, be paid over to the appropriate taxing authority, or to Stockholders (as
defined in the Acquisition Agreement) pursuant to Schedule A to the Acquisition Agreement,
within 45 days of the Person’s receipt of such Tax Payments or refunded to the Company;
(3) taxes which are not defined by reference to income, but which are imposed on such
Person as a result of its ownership of the equity of the Company, but only if and to the
extent that such Person has not received cash or other property in connection with the
events or transactions giving rise to such taxes;
(4) customary salary, bonus, severance and other benefits payable to, and indemnities
provided on behalf of, officers and employees of such direct or indirect parent entity of
the Company to the extent such salaries, bonuses, severance, indemnities and other benefits
are attributable to the ownership or operation of the Company and its Restricted
Subsidiaries, and general corporate overhead expenses for such direct or indirect parent
entity of the Company to
22
the extent such expenses are attributable to the ownership or operation of the Company and
its Restricted Subsidiaries; provided that the aggregate amount contemplated by this clause
(3) does not exceed $1.0 million per annum; and
(5) reasonable fees and expenses incurred in connection with any unsuccessful debt or
Equity Offering by such direct or indirect parent entity of the Company.
“Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated organization, government or
any agency or political subdivision thereof or any other entity.
“PIK Interest” has the meaning set forth in Section 2.01 herein.
“Preferred Stock” as applied to the Capital Stock of any corporation means Capital Stock of
any class or classes, however designated, that 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
corporation, over shares of Capital Stock of any other class of such corporation.
“Private Placement Legend” means the legend set forth in Section 2.06(g)(1) hereof to be
placed on all Notes issued under this Indenture except where otherwise permitted by the provisions
of this Indenture.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Pro Forma Cost Savings” means any pro forma expense and cost reductions and other operating
improvements that have occurred or are reasonably expected to occur in the reasonable judgment of
the chief financial officer of the Company (regardless of whether those cost savings or operating
improvement could then be reflected in pro forma financial statements in accordance with GAAP,
Regulation S-X promulgated under the Securities Act or any other regulation or policy of the SEC
related thereto).
“Qualified Proceeds” means assets, measured at their Fair Market Value, that are used or
useful in, or Capital Stock of any Person engaged in, the business of the Company and its
Restricted Subsidiaries.
“Qualified Receivables Transaction” means any transaction or series of transactions entered
into by the Company or any of its Restricted Subsidiaries pursuant to which the Company or any of
its Restricted Subsidiaries sells, conveys or otherwise transfers to (1) a Receivables Subsidiary
(in the case of a transfer by the Company or any of its Restricted Subsidiaries) and (2) any other
Person (in the case of a transfer by a Receivables Subsidiary), or grants a security interest in,
any franchise accounts receivable (whether now existing or arising in the future) of the Company or
any of its Restricted Subsidiaries, and any assets related thereto including, without limitation,
all collateral securing such franchise accounts receivable, all contracts and all guarantees or
other obligations in respect of such franchise accounts receivable, proceeds of such franchise
accounts receivable and other assets that are customarily transferred or in respect of which
security interests are customarily granted in connection with asset securitization transactions
involving franchise accounts receivable.
“Receivables Subsidiary” means a Restricted Subsidiary that engages in no activities other
than in connection with the financing of franchise accounts receivable and that is designated by
the Board of Directors (as provided below) as a Receivables Subsidiary:
23
(1) no portion of the Indebtedness or any other Obligations (contingent or otherwise)
of which:
(a) is guaranteed by the Company or any Restricted Subsidiary (excluding
guarantees of Obligations (other than the principal of, and interest on,
Indebtedness) pursuant to representations, warranties, covenants and indemnities
entered into in the ordinary course of business in connection with a Qualified
Receivables Transaction);
(b) is recourse to or obligates the Company or any Restricted Subsidiary in any
way other than pursuant to representations, warranties, covenants and indemnities
entered into in the ordinary course of business in connection with a Qualified
Receivables Transaction; or
(c) subjects any property or asset of the Company or any Restricted Subsidiary
(other than franchise accounts receivable and related assets as provided in the
definition of “Qualified Receivables Transaction”), directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than pursuant to
representations, warranties, covenants and indemnities entered into in the ordinary
course of business in connection with a Qualified Receivables Transaction;
(2) with which neither the Company nor any Restricted Subsidiary has any material
contract, agreement, arrangement or understanding other than on terms no less favorable to
the Company or such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company, other than fees payable in the ordinary
course of business in connection with servicing franchise accounts receivable; and
(3) with which neither the Company nor any Restricted Subsidiary has any obligation to
maintain or preserve such Subsidiary’s financial condition or cause such Subsidiary to
achieve certain levels of operating results. Any such designation by the Board of Directors
will be evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors giving effect to such designation and an Officer’s
Certificate certifying that such designation complied with the foregoing conditions.
“Refinancing Indebtedness” means Indebtedness that is Incurred to refund, refinance, replace,
renew, repay or extend, including pursuant to any defeasance or discharge mechanism (collectively,
"refinances,” and “refinanced” shall have a correlative meaning), any Indebtedness existing on the
date of this Indenture or Incurred in compliance with this Indenture, including Indebtedness of the
Company that refinances Indebtedness of any Restricted Subsidiary, to the extent permitted in this
Indenture, 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 Stated Maturity of the Indebtedness being refinanced and (b) 91 days after the
Stated Maturity of the Notes;
(2) the Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the shorter of (a) the Average
Life of the Indebtedness being refinanced and (b) the sum of the Average Life of the Notes
and 91 days;
(3) such Refinancing Indebtedness is Incurred in an aggregate principal amount, or if
issued with original issue discount, an aggregate issue price, that is equal to or less than
the
00
xxxxxxxxx xxxxxxxxx xxxxxx, xx if issued with original issue discount, the aggregate
accreted value, then outstanding of the Indebtedness being refinanced, plus fees,
underwriting discounts, premiums and other costs and expenses Incurred in connection with
such Refinancing Indebtedness; provided further, however, that Refinancing Indebtedness
shall not include:
(a) Indebtedness of a Restricted Subsidiary that refinances Indebtedness of the
Company; or
(b) Indebtedness of the Company or a Restricted Subsidiary that refinances
Indebtedness of an Unrestricted Subsidiary; and
(4) in the case of Indebtedness of the Company or a Guarantor, such Refinancing
Indebtedness is Incurred by the Company, a Guarantor or by the Subsidiary who is the obligor
on the Indebtedness being refinanced.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of March 16,
2007, among the Company, the Guarantors and the Initial Purchasers, as such agreement may be
amended, modified or supplemented from time to time and, with respect to any Additional Notes, one
or more registration rights agreements among the Company and the other parties thereto, as such
agreement(s) may be amended, modified or supplemented from time to time, relating to rights given
by the Company to the purchasers of Additional Notes to register such Additional Notes under the
Securities Act.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S
Permanent Global Note, as appropriate.
“Regulation S Permanent Global Note” means a permanent Global Note in the form of Exhibit A1
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, issued in a denomination
equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration
of the Restricted Period.
“Regulation S Temporary Global Note” means a temporary Global Note in the form of Exhibit A2
hereto deposited with or on behalf of and registered in the name of the Depositary or its nominee,
issued in a denomination equal to the outstanding principal amount of the Notes initially sold in
reliance on Rule 903 of Regulation S.
“Related Business” means those businesses in which the Company or any of its Subsidiaries is
engaged on the date of this Indenture or that are reasonably related, incidental or complementary
thereto.
“Related Party” means:
(1) any controlling equity holder, managing general partner or majority-owned
Subsidiary of any Permitted Holder;
(2) any trust, corporation, partnership, limited liability company or other entity, the
beneficiaries, stockholders, partners, members, owners or Persons beneficially holding an
80% or more controlling interest of which consist of any one or more Permitted Holders
and/or such other Persons referred to in the immediately preceding clause (1); or
25
(3) any investment fund or similar entity managed by any one or more Permitted Holders
and/or such other Persons referred to in the immediately preceding clause (1) or (2).
“Representative” means the trustee, agent or representative, if any, for an issue of
Indebtedness.
“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 Investment” means an Investment other than a Permitted Investment.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation
S.
“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary, unless the context indicates reference to a restricted subsidiary of a Person other
than the Company, in which event such reference shall be to a Restricted Subsidiary of the Person
to whom such reference is made.
“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.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“senior credit facility” means the credit agreement dated as of March 16, 2007, among the
Company, the banks and other financial institutions party thereto from time to time, JPMorgan Chase
Bank, N.A., as administrative agent, Xxxxxxx Xxxxx Credit Partners L.P., as syndication agent, and
the other parties thereto, as such agreement may be assumed by any successor in interest, and as
such agreement may be amended, supplemented, waived or otherwise modified from time to time, or
refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to
time (whether in whole or in part, whether with the Company, or any subsidiary of the Company as
borrower, whether with the original agent and lenders or other agents and lenders or otherwise).
“senior subordinated notes” means General Nutrition Centers, Inc.’s Senior Subordinated Notes
due 2015 issued pursuant to an indenture dated as of March 16, 2007, among General Nutrition
Centers, Inc., the guarantors party thereto and LaSalle Bank National Association, as trustee.
“Shelf Registration Statement” means the Shelf Registration Statement as defined in the
Registration Rights Agreement.
“Significant Subsidiary” means:
(1) any Subsidiary that would be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date of this Indenture; and
26
(2) any group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary.
“S&P” means Standard & Poor’s Ratings Service, a division of The XxXxxx-Xxxx Companies, Inc.,
and its successors.
“special interest” means all special interest then owing pursuant to the Registration Rights
Agreement.
“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, but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has occurred.
“Stockholders Agreement” shall mean the Stockholders’ Agreement, to be dated the closing date
of the Acquisition, by and among GNC Acquisition Holdings Inc., Ares Corporate Opportunities Fund
II, L.P., Ontario Teachers’ Pension Plan Board and the other stockholders party thereto, as
amended, supplemented, replaced or otherwise modified from time to time in accordance with the
terms thereof.
“Subordinated Obligation” means any Indebtedness of the Company or any Guarantor, whether
outstanding on the date of this Indenture or thereafter Incurred, which is expressly subordinate or
junior in right of payment to the Notes or the note guarantees pursuant to a written agreement.
“Subsidiary” means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency and after giving effect to any voting agreement or stockholders’ agreement
that effectively transfers voting power) to vote in the election of directors, managers or
trustees of the corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are that Person or one or more Subsidiaries of that Person (or any combination
thereof).
“Successor Company” shall have the meaning assigned to it in Section 5.01 of this Indenture.
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of this Indenture.
“Trade Payables” means, with respect to any Person, any accounts payable or any indebtedness
or monetary obligation to trade creditors created, assumed or Guaranteed by such Person arising in
the ordinary course of business in connection with the acquisition of goods or services.
“Trustee” means LaSalle Bank National Association until a successor replaces it in accordance
with the applicable provisions of this Indenture and thereafter means the successor serving
hereunder.
27
“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required
to bear the Private Placement Legend.
“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear
the Private Placement Legend.
“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 in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Company, including any newly
acquired or newly formed Subsidiary of the Company, to be an Unrestricted Subsidiary unless
at the time of such designation 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
other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either:
(a) the Subsidiary to be so designated has total consolidated assets of
$100,000 or less; or
(b) if such Subsidiary has consolidated assets greater than $100,000, then such
designation would be permitted under the provisions of Section 4.07 hereof.
The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such designation, no
Default or Event of Default shall have occurred and be continuing or shall occur as a result
of such designation.
Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly
filing with the Trustee a copy of the resolution of the Company’s Board of Directors giving effect
to such designation and an Officer’s Certificate certifying that such designation complied with the
foregoing provisions.
“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities
Act.
“Voting Stock” of an entity means all classes of Capital Stock of such entity then outstanding
and normally entitled to vote in the election of directors or all interests in such entity with the
ability to control the management or actions of such entity.
Section 1.02 Other Definitions.
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|
|
|
|
|
|
|
Defined |
|
|
in |
Term |
|
Section |
“Affiliate Transaction” |
|
|
4.11 |
|
“Asset Sale Offer” |
|
|
3.09 |
|
“Authentication Order” |
|
|
2.02 |
|
“Change of Control Offer” |
|
|
4.15 |
|
“Change of Control Payment” |
|
|
4.15 |
|
“Change of Control Payment Date” |
|
|
4.15 |
|
“Covenant Defeasance” |
|
|
8.03 |
|
“DTC” |
|
|
2.03 |
|
“Event of Default” |
|
|
6.01 |
|
“Excess Proceeds” |
|
|
4.10 |
|
“Fairness Opinion” |
|
|
4.11 |
|
“Initial Agreement” |
|
|
4.08 |
|
“Legal Defeasance” |
|
|
8.02 |
|
“Offer Amount” |
|
|
3.09 |
|
“Paying Agent” |
|
|
2.03 |
|
“PIK Notes” |
|
|
2.01 |
|
“PIK Payment” |
|
|
2.01 |
|
“Permitted Debt” |
|
|
4.09 |
|
“Purchase Date” |
|
|
3.09 |
|
“Refinancing Agreement” |
|
|
4.08 |
|
“Registrar” |
|
|
2.03 |
|
“Restricted Payments” |
|
|
4.07 |
|
“Successor Company” |
|
|
5.01 |
|
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
“indenture securities” means the Notes;
“indenture security Holder” means a Holder of a Note;
“indenture to be qualified” means this Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the Notes and the note guarantees means the Company and the Guarantors,
respectively, and any successor obligor upon the Notes and the note guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
29
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;
(5) “will” shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act will be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from time
to time.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee’s certificate of authentication will be substantially
in the form of Exhibits A1 and A2 hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Note will be dated the date of its
authentication. The Notes shall be in minimum denominations of $2,000 and integral multiples of
$1,000 in excess thereof, except that Additional Notes issued as payment of regular or special
interest may be in other denominations.
In connection with the payment of PIK Interest or Partial PIK Interest, the Company is
entitled to, without the consent of the Holders, increase the outstanding principal amount of the
Notes or issue additional Notes (the “PIK Notes") under this Indenture on the same terms and
conditions as the Notes offered hereby (in each case, a “PIK Payment"). Except as described under
Article 9, the Notes offered by the Company, the PIK Notes and any Additional Notes subsequently
issued under this Indenture will be treated as a single class for all purposes under this
Indenture, including waivers, amendments, redemptions and offers to purchase. Unless the context
requires otherwise, references to “Notes” for all purposes of this Indenture include any PIK Notes
and Additional Notes that are actually issued, and references to “principal amount” of the Notes
includes any increase in the principal amount of the outstanding Notes as a result of a PIK
Payment. The Company will issue notes in denominations of $2,000 and integral multiples of $1,000,
subject to the issuance of certificated PIK Notes as indicated below.
The Company may, at its option, elect to pay interest on the notes:
(1) entirely in cash (“Cash Interest”);
(2) entirely by increasing the principal amount of the outstanding notes or by issuing
PIK Notes having an aggregate principal amount equal to the amount of interest then due and
owing (“PIK Interest”); or
30
(3) on 50% of the outstanding principal amount of the notes in cash and on 50% of the
outstanding principal amount of the notes by increasing the principal amount of the
outstanding notes or by issuing PIK Notes having an aggregate principal amount equal to the
amount of interest being paid in the form of PIK Interest (“Partial PIK Interest").
The Company must elect the form of interest payment with respect to each interest period by
delivering a notice to the Trustee at least five business days prior to the beginning of each
interest period. The Trustee shall promptly deliver a corresponding notice to the Holders. In the
absence of such an election, interest on the Notes will be payable entirely in cash.
Interest on the Notes will accrue at a rate equal to the Applicable LIBOR Rate plus 450 basis
points. PIK Interest on the notes will accrue at a rate equal to the Applicable LIBOR Rate plus 525
basis points and be payable:
(1) with respect to Notes represented by one or more Global Notes registered in the
name of, or held by, DTC (or any successor depositary) or its nominee on the relevant record
date, by increasing the principal amount of the outstanding Global Notes, effective as of
the applicable Interest Payment Date, by an amount equal to the amount of PIK Interest for
the applicable interest period (rounded up to the nearest $1,000); and
(2) with respect to Notes represented by certificated Notes, by issuing PIK Notes in
certificated form, dated as of the applicable Interest Payment Date, in an aggregate
principal amount equal to the amount of PIK Interest for the applicable interest period
(rounded up to the nearest whole dollar).
The Trustee will, at the request of the Company, authenticate and deliver such PIK Notes in
certificated form for original issuance to the Holders of certificated Notes on the relevant record
date, as shown by the records of the register of Holders. In the event that the Company elects to
pay Partial PIK Interest for any interest period, each Holder of Notes will be entitled to receive
Cash Interest in respect of 50% of the principal amount of the Notes held by such Holder on the
relevant record date and PIK Interest in respect of 50% of the principal amount of the Notes held
by such Holder on the relevant record date.
Following an increase in the principal amount of the outstanding Global Notes as a result of a
PIK Payment, the Global Notes will bear interest on such increased principal amount from and after
the applicable Interest Payment Date. Any PIK Notes issued in certificated form will be dated as
of the applicable Interest Payment Date and will bear interest from and after such date. All Notes
issued pursuant to a PIK Payment will mature on March 15, 2014 and will be governed by, and subject
to the terms, provisions and conditions of, this Indenture and will have the same rights and
benefits as the Notes issued on the date of this Indenture.
The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture, and 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. However, 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) Global Notes. Notes issued in global form will be substantially in the form of Exhibits
A1 or A2 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 will be
substantially in the form of Exhibit A1 hereto (but without the Global Note Legend thereon and
without the “Schedule of Exchanges
31
of Interests in the Global Note” attached thereto). Each Global Note will represent such of
the outstanding Notes as will be specified therein and each shall provide that it represents 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 will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S will be issued
initially in the form of the Regulation S Temporary Global Note, which will be deposited on behalf
of the purchasers of the Notes represented thereby with the Trustee, at its Chicago office, as
custodian for the Depositary, and registered in the name of the Depositary or the nominee of the
Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream,
duly executed by the Company and authenticated by the Trustee as hereinafter provided. The
Restricted Period will be terminated upon the receipt by the Trustee of any certificates identified
by the Company or its counsel to be required pursuant to Rule 903(b)(3)(ii)(B) under the Securities
Act, which may include certificates from Euroclear or Clearstream, as the case may be, certifying
that it has received certification of non-United States beneficial ownership of 100% of the
aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any
beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to
another exemption from registration under the Securities Act and who will take delivery of a
beneficial ownership interest in a 144A Global Note or an IAI Global Note bearing a Private
Placement Legend, all as contemplated by Section 2.06(b) hereof).
Following the termination of the Restricted Period, beneficial interests in the Regulation S
Temporary Global Note will be exchanged for beneficial interests in the Regulation S Permanent
Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the
Regulation S Permanent Global Note, the Trustee will cancel the Regulation S Temporary Global Note.
The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S
Permanent Global Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be, in connection with
transfers of interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the
“General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will
be applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and
the Regulation S Permanent Global Note that are held by Participants through Euroclear or
Clearstream.
Section 2.02 Execution and Authentication.
At least one Officer must 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 will nevertheless be valid.
Except as set forth in Section 4.01 hereof, a Note will not be valid until authenticated by
the manual signature of the Trustee. The signature will be conclusive evidence that the Note has
been authenticated under this Indenture.
32
The Trustee will, upon receipt of a written order of the Company signed by one Officer (an
"Authentication Order”), authenticate and deliver Notes for original issue that may be validly
issued under this Indenture, including any Additional Notes and including any PIK Notes issued in
payment of PIK Interest or Partial PIK Interest. On any Interest Payment Date on which the Issuer
pays PIK Interest and Partial PIK Interest with respect to a Global Note, the Trustee shall
increase the principal amount of such Global Note by an amount equal to the interest payable,
rounded up to the nearest $1,000, for the interest period on the principal amount of such Global
Note as of the record date, to the credit of the Holders on the record date, pro rata in accordance
with their interests, and an adjustment shall be made on the books and records of the Trustee (if
it is then the Custodian for such Global Note) with respect to such Global Note, by the Trustee or
the Custodian, to reflect such increase. On any interest payment date on which the Issuer pays PIK
Interest or Partial PIK Interest by issuing definitive PIK Notes, the principal amount of any such
PIK Notes issued to any Holder, for the interest period as of the record date for the interest
payment, shall be rounded up to the nearest $1.00. The aggregate principal amount of Notes
outstanding at any time may not exceed the aggregate principal amount of Notes authorized for
issuance by the Company pursuant to one or more Authentication Orders, except as provided in
Section 2.07, 2.13 and 4.01 hereof.
On each Interest Payment Date on which the Company pays interest and special interest, if any,
in the form of Additional Notes, the Trustee or the authentication agent will, at the Company’s
request, authenticate and deliver Additional Notes for original issuance to the Holders of the
Notes on the relevant record date, as shown by the records of the Registrar, in the aggregate
principal amount required to pay such interest and special interest, if any. Any Additional Notes
so issued will be dated the applicable interest payment date, will bear interest from and after
such date, will mature on March 15, 2014 and will be governed by, and subject to the terms,
provisions and conditions of, this Indenture and will have the same rights and benefits as the
Initial Notes. Any Additional Notes will be issued with the designation “Toggle Note” on the face
of such Additional Notes.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. 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.
The Company will maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for
payment (“Paying Agent”). The Registrar will keep a 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 notice to
any Holder. The Company will notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with
respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act
as Custodian with respect to the Global Notes.
33
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal, interest (including special interest, if any) and
premium, if any, on the Notes, and will notify the Trustee of any default by the Company 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 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 Subsidiary) will have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar, the Company will 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 the Holders of Notes and the Company shall otherwise comply with TIA
§ 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a
whole 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
successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee 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;
(2) 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; provided that in no event shall the Regulation S Temporary Global
Note be exchanged by the Company for Definitive Notes prior to (A) the expiration of the
Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant
to Rule 903(b)(3)(ii)(B) under the Securities Act; or
(3) upon request of the Trustee or the Holders of at least a majority in aggregate
principal amount of outstanding Notes, if there has occurred and is continuing a Default or
Event of Default with respect to the Notes.
Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes shall
be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Definitive Notes delivered in exchange for any Global Note or beneficial interests in Global Notes
will be registered in the names,
34
and issued in any approved denominations, requested by or on behalf of the Depositary (in
accordance with its customary procedures) and will bear the Private Placement Legend and the
Regulation S Temporary Legend unless those legends are not required by applicable law.
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), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or
(f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will 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 will 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; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). 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) both:
(i) 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
(ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or
(B) both:
(i) 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
35
(ii) 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;
provided that in no event shall Definitive Notes be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Note prior to (A) the expiration of the
Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to
Rule 903 under the Securities Act. Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall be deemed
to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes.
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests 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
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 Temporary Global Note or the Regulation S Permanent 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, certificates and Opinion of
Counsel required by item (3) 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 effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it is not
(i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
36
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) 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
(ii) 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 (D), 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 is effected pursuant to subparagraph (B) or (D) above 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 Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.
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 for Definitive Notes.
(1) 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, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
37
(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, 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, 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) 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,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c) 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 Definitive Notes to the Persons in whose
names such Notes are so registered. Any 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) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes.
Notwithstanding Sections 2.06(c)(1)(A) and (C) hereof, a beneficial interest in the
Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred
to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(3) 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 effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder of such beneficial
38
interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes
or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or
(ii) 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 an Unrestricted Definitive 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 (D), 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.
(4) 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 a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction
of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company will execute and the Trustee will authenticate
and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(4) will be registered in such name or names and in
such authorized denomination or denominations as the Holder of such beneficial interest
requests through instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(4) will not bear the Private
Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(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
39
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, 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, 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, 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) 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,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased 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) 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 effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution
40
of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes proposes to exchange such
Notes 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
(ii) if the Holder of such Definitive Notes proposes to transfer such
Notes 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 (D), 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 will cancel the Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global Note.
(3) 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 will
cancel the applicable Unrestricted Definitive Note and increase or cause to be increased 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)(B), (2)(D) or (3) above at a time when an
Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the
Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly
41
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 must provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of this Section 2.06(e).
(1) 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, 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) 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 effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(i) 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
(ii) 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
42
Unrestricted Definitive 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 (D), if the Registrar so
requests, 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) 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 request to register such
a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes accepted for
exchange in the Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange
Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and
(C) they are not affiliates (as defined in Rule 144) of the Company.
Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will
execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends will 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:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING
43
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904
OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT, IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (5) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (BASED UPON AN OPINION
OF COUNSEL IF GENERAL NUTRITION CENTERS, INC., SO REQUESTS) OR (6) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE BLUE SKY
LAWS OF THE STATES OF THE UNITED STATES.”
(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or
(f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note will 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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF GENERAL
NUTRITION CENTERS, INC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.”
(3) Original Issue Discount Legend. Each note will bear a legend in substantially the
following form:
44
“THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. GENERAL NUTRITION CENTERS, INC., (THE “COMPANY”)
AGREES TO PROVIDE PROMPTLY TO HOLDERS OF NOTES, UPON WRITTEN REQUEST, THE ISSUE PRICE, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY, WITH RESPECT TO THE NOTES. ANY SUCH
WRITTEN REQUEST SHOULD BE SENT TO THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT THE FOLLOWING
ADDRESS: GENERAL NUTRITION CENTERS, INC., 000 XXXXX XXXXXX, XXXXXXXXXX, XXXXXXXXXXXX 00000.”
(4) Regulation S Temporary Global Note Legend. The Regulation S Temporary Global Note
will bear a Legend in substantially the following form:
“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST HEREON. DURING THE PERIOD WHICH SUCH HOLDER HOLDS
THIS NOTE NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM ACCRUING ON THIS NOTE.
UNTIL 40 DAYS AFTER THE COMMENCEMENT OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE
UNITED STATES BY A DEALER (AS DEFINED IN THE U.S. SECURITIES ACT) MAY VIOLATE THE REGISTRATION
REQUIREMENTS OF THE U.S. SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE
WITH RULE 144A UNDER THE U.S. SECURITIES ACT.”
(h) 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 canceled in whole and not in part, each such Global Note will be
returned to or retained and canceled 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 will be reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such 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 will be
increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Company will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.
(2) No service charge will 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 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, 4.15 and 9.05 hereof).
45
(3) The Registrar will not be required to register the transfer of or exchange of 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 will be the valid obligations of the Company,
evidencing the same Indebtedness, 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) Neither the Registrar nor the Company will 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 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 will 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.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives
evidence (which evidence may be from the Trustee) to its satisfaction of the destruction, loss or
theft of any Note, the Company will issue and the Trustee, upon receipt of an Authentication Order,
will authenticate a replacement Note if the Trustee’s requirements are met. If required by the
Trustee or the Company, an affidavit of lost certificate and/or 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 Trustee, any Agent and any authenticating agent from any loss that any of them may
suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note,
including reasonable fees and expenses of its counsel and of the Trustee and its counsel.
Every replacement Note is an additional obligation of the Company and will be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
46
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee (including
any Note represented by a Global Note) except for those canceled by it or at its direction, those
delivered to it for cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not
outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
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 protected purchaser.
If the aggregate principal amount of any Note is considered paid under Section 4.01 hereof, it
ceases to be outstanding and ceases to accrue interest thereon or accrete in value, as the case may
be.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date,
then on and after that date such Notes will be deemed to be no longer outstanding and will cease to
accrue interest or accrete in value, as the case may be.
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 or any Guarantor, or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or any Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any such direction,
waiver or consent, only Notes that the Trustee knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary
Notes will be substantially in the form of certificated Notes but may have variations that the
Company considers appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate
definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent will forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or
the Paying Agent, and no one else will cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and will destroy canceled Notes (subject to the
record retention requirement of the Exchange Act). Certification of the destruction of all
canceled Notes will be delivered to the Company. The Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for cancellation.
47
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it will 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, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. The Company will fix or cause to be fixed each such special record date and
payment date; provided that no such special record date may be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the name and at the
expense of the Company) will mail or cause to be mailed to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be paid.
Notwithstanding anything else in this Indenture or any Note to the contrary, the Company shall
pay all interest in cash, and not in Additional Notes, after the Notes become due and payable,
whether due to (a) acceleration of the Notes pursuant to Section 6.02 (including automatic
acceleration pursuant to the first sentence of Section 6.02 in the case of an Event of Default
specified in clause (7) or (8) of Section 6.01), (b) the scheduled maturity of the Notes or (c) the
redemption of the Notes.
Section 2.13 Issuance of Additional Notes.
(a) The Company will be entitled, upon delivery of an Officer’s Certificate, Opinion of
Counsel and Authentication Order, subject to its compliance with Section 4.09 hereof, to issue
Additional Notes under this Indenture which will have identical terms as the Initial Notes issued
on the date of this Indenture, other than with respect to the date of issuance and issue price.
(b) With respect to any Additional Notes, the Company will set forth in a resolution of its
Board of Directors and an Officer’s Certificate, a copy of each of which shall be delivered to the
Trustee, the following information:
(1) the aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP number of such Additional Notes; and
(3) whether such Additional Notes shall be transfer restricted Notes and issued in the
form of Initial Notes as set forth in Section 2.02 of this Indenture or shall be issued in
the form of Exchange Notes.
(c) With respect to any Additional Notes issued in payment of interest or special interest, if
any, the Company shall deliver to the Trustee and the Paying Agent, no later than two Business Days
prior to the relevant interest payment date, (i) if such Notes are in definitive form, the required
amount of new definitive Additional Notes and an order to authenticate and deliver such Additional
Notes or (ii) if such securities are in global form, an order to increase the principal amount of
such Notes by the relevant amount (or, if necessary, to authenticate a new Global Note executed by
the Company with such increased principal amounts); provided that any failure by the Company to
deliver such order pursuant to this subparagraph 2.13(c) shall not be an Event of Default.
48
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it must furnish to the Trustee, at least 30 days (unless a shorter period is
acceptable to the Trustee) but not more than 60 days (unless a longer period is acceptable to the
Trustee) before a redemption date, an Officer’s Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any
time, the Trustee will select Notes for redemption or purchase on a pro rata basis, unless
otherwise required by stock exchange rule or other regulation.
In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or
purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption or Purchase Date by the Trustee from the outstanding Notes not
previously called for redemption or purchase.
The Trustee will promptly notify the Company in writing of the Notes selected for redemption
or purchase and, in the case of any Note selected for partial redemption or purchase, the principal
amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be equal to
$2,000 or an integral multiple of $1,000 in excess thereof. No Notes of $2,000 or less may be
redeemed in part, except that (a) Additional Notes issued in payment of interest or special
interest, if any, may be redeemed or purchased in other denominations and (b) if all of the Notes
of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except as provided in
the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or
purchase also apply to portions of Notes called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than 60 days
before a redemption date, the Company will mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its registered address,
except that redemption notices may be mailed more than 60 days prior to a redemption date if the
notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture pursuant to Articles 8 or 12 hereof. Notices of redemption may not be conditional.
49
The notice will identify the Notes to be redeemed and will 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 will be issued upon
cancellation of the original Note;
(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 and
special interest, if any, cease to accrue on Notes or portions of Notes called for
redemption 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) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.
At the Company’s request, the Trustee will give the notice of redemption in the Company’s name
and at its expense; provided, however, that the Company has delivered to the Trustee, at least 45
days (unless a shorter period is acceptable to the Trustee) prior to the redemption date, an
Officer’s Certificate requesting that the Trustee give such notice and 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 irrevocably due and payable on the redemption date at the redemption price. At
any time prior to the mailing of a notice of redemption to the Holders pursuant to Section 3.03
hereof, the Company may withdraw, revoke or rescind any notice of redemption delivered to the
Trustee without any continuing obligation to redeem the Notes as contemplated by such notice of
redemption.
Section 3.05 Deposit of Redemption or Purchase Price.
At or before 10:00 a.m. Eastern Time on the redemption or purchase date, the Company will
deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or
purchase price of and accrued and unpaid interest (including special interest, if any) on all Notes
to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly 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 or purchase price of, and accrued and unpaid interest
(including special interest, if any), on, all Notes to be redeemed or purchased.
50
If the Company complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes
called for redemption or purchase. If a Note is redeemed or purchased 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 or purchase is not so paid upon
surrender for redemption or purchase because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or
purchase 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 or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and,
upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the
expense of the Company, a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a) At any time prior to March 15, 2009, the Company may on any one or more occasions redeem
up to 35% of the aggregate principal amount of Notes issued under this Indenture at a redemption
price of 100% of the aggregate principal amount, plus a premium equal to the interest rate per
annum on the Notes applicable on the date on which notice of redemption is given, plus accrued and
unpaid interest (including special interest, if any) to the redemption date, subject to the rights
of Holders of Notes on the relevant record date to receive interest due on the relevant interest
payment date, with the Net Proceeds of one or more Equity Offerings; provided that:
(1) at least 65% of the aggregate principal amount of Notes originally issued under
this Indenture (excluding Notes held by the Company and its Subsidiaries) remains
outstanding immediately after the occurrence of such redemption; and
(2) the redemption occurs within 60 days of the date of the closing of such Equity
Offering.
(b) Except pursuant to the preceding paragraph, the Notes will not be redeemable at the
Company’s option prior to March 15, 2009.
(c) Upon not less than 30 nor more than 60 days’ notice, the Notes are redeemable, at the
Company’s option, in whole or in part, at any time and from time to time on and after March 15,
2009 at the redemption prices (expressed as a percentage of principal amount) set forth below, plus
accrued and unpaid interest (including special interest, if any) on the Notes redeemed, to the
applicable redemption date, if redeemed during the twelve-month period beginning on March 15 of the
years indicated below, subject to the rights of Holders of Notes on the relevant record date to
receive interest due on the relevant interest payment date:
|
|
|
|
|
|
|
Redemption |
Period |
|
Price |
2009 |
|
|
102.000 |
% |
2010 |
|
|
101.000 |
% |
2011 and thereafter |
|
|
100.000 |
% |
51
Unless the Company defaults in the payment of the redemption price, interest will cease to
accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking fund payments with respect
to the Notes.
Section 3.09 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company is required to commence an
offer to all Holders to purchase Notes (an “Asset Sale Offer”), it will follow the procedures
specified below.
The Asset Sale Offer shall be made to all Holders and all Holders of other Indebtedness that
is pari passu with the Notes containing provisions similar to those set forth in this Indenture
with respect to offers to purchase or redeem at a purchase price of 100% of the principal amount
thereof plus accrued and unpaid interest (plus special interest, if any) to the Purchase Date, with
the proceeds of sales of assets. The Company will comply 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 3.09 and Section 4.10 hereof, in each case, to the extent
applicable. To the extent that the provisions of any securities laws or regulations conflict with
provisions of this Section 3.09 or Section 4.10 hereof, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its obligations under this
Section or Section 4.10 hereof as a result of such compliance. Payment for any Notes so purchased
will be made in the same manner as interest payments are made.
If the date on which Notes are purchased pursuant to an Asset Sale Offer (the “Purchase Date”)
is on or after an interest record date and on or before the related interest payment date, any
accrued and unpaid interest (including special interest, if any) will be paid to the Person in
whose name a Note is registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a
notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain
all instructions and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section
4.10 hereof and the length of time the Asset Sale Offer will remain open;
(2) the offer amount, which shall equal the amount of all Excess Proceeds (the “Offer
Amount”), the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue to accrue interest
(including special interest, if any) or accrete in value, as the case may be;
52
(4) that, unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer will cease to accrue interest (including special
interest, if any) or accrete in value, as the case may be, after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in minimum denominations of $2,000 in principal amount or
integral multiples of $1,000 in excess thereof (except that Additional Notes issued in
payment of interest and special interest, if any, may be purchased in other denominations);
(6) the instructions determined by the Company, consistent with Section 4.10 and this
Section 3.09, that a Holder must follow to have its Notes purchased;
(7) that, if the aggregate principal amount of Notes and other pari passu Indebtedness
surrendered in connection with the Asset Sale Offer thereof exceeds the Offer Amount, the
Company will select the Notes and other pari passu Indebtedness to be purchased on a pro
rata basis based on the aggregate principal amount of Notes and such other pari passu
Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company
so that only Notes in minimum denominations of $2,000 in principal amount, or integral
multiples of $1,000 in excess thereof, will be purchased (except that Additional Notes
issued in payment of interest and Special Interest, if any, may be purchased in other
denominations)); and
(8) that Holders whose Notes were purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).
On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on
a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof properly
tendered and not withdrawn pursuant to the Asset Sale Offer, or if less than the Offer Amount has
been tendered, all Notes properly tendered and not withdrawn and will deliver or cause to be
delivered to the Trustee the Notes properly accepted together with an Officer’s 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, the Depositary or the Paying Agent, as the case may be,
will promptly mail or deliver to each tendering Holder an amount equal to the purchase price of the
Notes tendered by such Holder and accepted by the Company for purchase, and the Company will
promptly issue a new Note, and the Trustee, upon written request from the Company, will
authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such
Holder, in a principal amount equal 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 will publicly announce the results of the Asset Sale Offer on or about the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase 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 will pay or cause to be paid the principal of, premium, if any, and interest
(including special interest, if any) on, the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest (including special interest, if any) will be
considered paid on the
53
date due if (a) in the case of a payment in principal, premium, if any, and interest and
special interest, if any, upon the maturity of the date of redemption or repurchase of any Note,
the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern
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 (including special interest,
if any) then due and (b) in the case of a payment of interest and special interest, if any, on or
before the maturity or the date of redemption or repurchase of any Note, by issuance of Additional
Notes in an aggregate principal amount equal to the amount of such interest and special interest,
if any, then due, which Additional Notes shall automatically be deemed to have been issued to each
Holder of record in an aggregate principal amount equal to amount of interest and special interest,
if any, due to such Holder on the applicable interest payment date, and the Company shall
thereafter promptly cause to be executed and authenticated such Additional Notes in accordance with
Section 2.02 hereof and deliver such Additional Notes to each Holder of record (or to the Trustee
or the authenticating agent in custody for such Person) or, if otherwise, comply with Section 2.13
with respect to the issuance of Additional Notes. The Company will pay all special interest, if
any, in the same manner on the dates and in the amounts set forth in the Registration Rights
Agreement.
(b) The Company will pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law and including special interest, if any) on overdue principal and premium, if
any, at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it
will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law and
including special interest, if any) on overdue installments of interest and special interest
(without regard to any applicable grace period) at the same rate to the extent lawful. Any such
payments will be paid in Additional Notes to the extent lawful in the manner contemplated by
Section 4.01(a).
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in Chicago, Illinois an office or agency (which may be an office of
the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The Company will give prompt
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 fails to maintain any such required office or agency or fails
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.
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 will in any
manner relieve the Company of its obligation to maintain an office or agency in Chicago, Illinois
for such purposes. The Company will give prompt 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.
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 hereof.
Section 4.03 Reports.
(a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company will furnish to the Holders of Notes or cause the Trustee to furnish to
the Holders of Notes, within the time periods specified in the SEC’s rules and regulations:
54
(1) all quarterly and annual reports that would be required to be filed with the
SEC on Forms 10-Q and 10-K (beginning with a Form 10-K for the year ending December 31,
2006, which Form 10-K need not be filed with the SEC or furnished to Holders until April 15,
2007) if the Company were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports.
All such reports will be prepared in all material respects in accordance with all of the rules
and regulations of the Exchange Act applicable to such reports. Each annual report on Form 10-K
will include a report on the Company’s consolidated financial statements by the Company’s certified
independent accountants. In addition, following the consummation of the Exchange Offer
contemplated by the Registration Rights Agreement, the Company will file a copy of each of the
reports referred to in clauses (1) and (2) above with the SEC for public availability within the
time periods specified in the rules and regulations applicable to such reports (unless the SEC will
not accept such a filing) and will make such information available to securities analysts and
prospective investors upon request. The Company will at all times comply with TIA § 314(a).
Notwithstanding the foregoing, the Company will not be required to file or furnish any
information, certifications or reports required by Items 307 or 308 of Regulation S-K, except to
the extent the rules and regulations of the SEC actually require it to do so.
If at any time, the Company is no longer subject to the periodic reporting requirements of the
Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in
the preceding paragraphs with the SEC within the time periods specified above unless the SEC will
not accept such a filing. The Company will not take any action for the purpose of causing the SEC
not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the
Company’s filings for any reason, the Company will post the reports referred to in the preceding
paragraphs on its website within the time periods that would apply if the Company were required to
file those reports with the SEC.
In the event that Parent or any other direct or indirect parent company of the Company is or
becomes a Guarantor of the Notes, this Indenture will permit the Company to satisfy its obligations
in this Section 4.03 by filing and furnishing reports relating to Parent or such other direct or
indirect parent company in lieu of reports relating to the Company; provided, however, that such
reports are accompanied by consolidating information that explains in reasonable detail the
differences between the information relating to Parent or such other direct or indirect parent
company and any of its Subsidiaries other than the Company and its Restricted Subsidiaries, on the
one hand, and the information relating to the Company, the Guarantors and the other Restricted
Subsidiaries of the Company on a standalone basis, on the other hand.
(b) For so long as any Notes remain outstanding, if at any time the Company and the Guarantors
are not required to file with the SEC the reports required by paragraphs (a) and (b) of this
Section 4.03, the Company and the Guarantors will 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.
Section 4.04 Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such Guarantor is so required under the
TIA) shall deliver to the Trustee, within 120 days after the end of each fiscal year, an Officer’s
Certificate stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year
55
has been made under the supervision of the signing Officer with a view to determining whether
the Company 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 the Company 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 has occurred,
describing all such Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto).
(b) So long as any of the Notes are outstanding, the Company will deliver to the Trustee,
within 30 days after the occurrence of any Default or Event of Default, an Officer’s Certificate
specifying such Default or Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
Section 4.05 Taxes.
The Company will pay, and will cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment would not have a
material adverse effect on the ability of the Company and the Guarantors to satisfy their
obligations under the Notes, the Guarantees and this Indenture.
Section 4.06 Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenants (to the extent that it may lawfully do so)
that it will 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; and the
Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.07 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted Subsidiaries to, take any of
the following actions:
(1) declare or pay any dividend or make any other payment or distribution on account of
the Company’s or any of its Restricted Subsidiaries’ Capital Stock (including, without
limitation, any payment in connection with any merger or consolidation involving the Company
or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s
or any of its Restricted Subsidiaries’ Capital Stock in their capacity as such (other than
dividends or distributions payable in Capital Stock (other than Disqualified Stock) of the
Company or to the Company or a Restricted Subsidiary of the Company and other than payments
of dividends on, and mandatory repurchases at Stated Maturity of, Disqualified Stock that
was issued after the date of this Indenture in compliance with Section 4.09 hereof);
(2) purchase, redeem, retire or otherwise acquire for value (including, without
limitation, in connection with any merger or consolidation involving the Company) any
Capital Stock of the Company or any direct or indirect parent of the Company;
56
(3) purchase, repurchase, redeem, defease or otherwise acquire or retire for value any
Subordinated Obligation before scheduled maturity, scheduled repayment or scheduled sinking
fund payment; provided that this restriction does not apply to a purchase, repurchase,
redemption or other acquisition made in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one year of the
date of such purchase, repurchase, redemption or acquisition; or
(4) make any Restricted Investment (all such payments and other actions set forth in
these clauses (1) through (4) being collectively referred to as “Restricted Payments”).
if at the time the Company or its Restricted Subsidiary makes a Restricted Payment:
(1) a Default or Event of Default has occurred and is continuing or would result
therefrom;
(2) the Company would not, after giving effect to such Restricted Payment, be permitted
to Incur at least $1.00 of additional Indebtedness under the first paragraph of Section 4.09
hereto; or
(3) the aggregate amount of such Restricted Payment and all other Restricted Payments
declared or made after the date of this Indenture (excluding Restricted Payments permitted
by clauses (1) through (3), (5) through (8) and (10) through (16) of paragraph (b) below)
would exceed, without duplication, the sum of:
(A) 50% of the Consolidated Net Income of the Company accrued during the
period, treated as one accounting period, from the beginning of the first fiscal
quarter commencing after the date of this Indenture to the end of the most recent
fiscal quarter ending before the date of such Restricted Payment for which
consolidated financial statements of the Company are available, or, if such
Consolidated Net Income is a deficit, then minus 100% of such deficit;
(B) 100% of the aggregate net proceeds received by the Company since the date
of this Indenture as a contribution to its common equity capital or from the issue
or sale of Capital Stock of the Company (other than Disqualified Stock) or from the
issue or sale of convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have been converted into or
exchanged for such Capital Stock (other than (x) Capital Stock (or Disqualified
Stock or debt securities) sold to a Restricted Subsidiary of the Company, (y) any
contribution to capital that was used to permit an Incurrence of Contribution
Indebtedness and (z) Excluded Contributions), less the amount of any such net
proceeds that are utilized for an Investment pursuant to clause (12) of the
definition of “Permitted Investments;”
(C) in the case of the disposition or repayment of any Investment constituting
a Restricted Investment, without duplication of any amount deducted in calculating
the amount of Investments at any time outstanding included in the amount of
Restricted Payments, an amount equal to 100% of the net proceeds (including the Fair
Market Value of any non-cash proceeds) of such disposition or repayment;
(D) to the extent that any Unrestricted Subsidiary of the Company designated as
such after the date of this Indenture is redesignated as a Restricted Subsidiary
after the date of this Indenture, the lesser of (i) the Fair Market Value of the
Company’s
57
Investment in such Subsidiary as of the date of such redesignation or (ii) such
Fair Market Value as of the date on which such Subsidiary was originally designated
as an Unrestricted Subsidiary after the date of this Indenture; and
(E) 100% of any dividends (including the Fair Market Value of any non-cash
assets) received by the Company or any of its Restricted Subsidiaries after the date
of this Indenture from an Unrestricted Subsidiary of the Company, to the extent such
dividends were not already included pursuant to clause 3(A) above.
(b) The provisions of Section 4.07(a) hereof will not prohibit the following
actions:
(1) any Restricted Payment made in exchange for or out of the proceeds of the
substantially concurrent sale of, Capital Stock of the Company, other than (x) Disqualified
Stock, (y) any such proceeds that were used to permit an Incurrence of Contribution
Indebtedness or that were designated as Excluded Contributions and (z) any sale of Capital
Stock to a Subsidiary or an employee stock ownership plan or other trust established by the
Company or any of its Subsidiaries; and provided that the net proceeds from any such sale of
Capital Stock will be excluded from clause 3(B) of paragraph (a) above;
(2) any purchase, redemption, repurchase, defeasance, retirement or other acquisition
of Subordinated Obligations made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Subordinated Obligations of the Company that is permitted
to be Incurred by Section 4.09 hereto;
(3) within 60 days after completion of a Change of Control Offer or an Asset Sale Offer
(including the purchase of all Notes tendered pursuant thereto), any purchase or redemption
of Subordinated Obligations that are required to be repurchased or redeemed pursuant to the
terms thereof as a result of such Change of Control or Asset Sale;
(4) the payment of dividends within 60 days after the date of declaration of such
dividends, if at the date of declaration such dividend would have complied with Section
4.07(a) hereof;
(5) any purchase or redemption of any shares of Capital Stock of the Company from
current or former employees or directors of the Company and its Restricted Subsidiaries
pursuant to the repurchase provisions under employee stock option or stock purchase
agreements or other agreements to compensate employees or directors or in connection with
the termination of such position in an aggregate amount after the date of this Indenture not
in excess of $5.0 million in any fiscal year, plus any unused amounts under this clause from
prior fiscal years; provided that such amount may be increased by an amount equal to (x) the
cash proceeds received by the Company or any Restricted Subsidiary from the sale of Capital
Stock of the Company (other than Disqualified Stock) or of Parent (to the extent contributed
to the Company as common equity) to members of management, directors or consultants of the
Company, any Restricted Subsidiary or Parent (other than any such proceeds (x) that were
used to permit an Incurrence of Contribution Indebtedness or that were designated as
Excluded Contributions, or (y) that were included for purposes of clause 3(B) of paragraph
(a) above); plus (y) the cash proceeds of key man life insurance policies received since the
date of this Indenture by the Company or Parent (to the extent contributed to the Company as
common equity) or any Restricted Subsidiary;
58
(6) the payment of any dividend by a Restricted Subsidiary to the holders of all of its
common equity interests on a pro rata basis;
(7) the payments described in the Offering Memorandum under the heading “Use of
Proceeds,” including making a loan (the “Closing Date Loan”) to Parent as described therein,
and any Restricted Payment deemed to occur upon a forgiveness of the Closing Date Loan or
any accrued interest thereon;
(8) the repurchase of Equity Interests deemed to occur upon the exercise of stock
options to the extent such Equity Interests represent a portion of the exercise price of
those stock options;
(9) the payment of dividends on the Company’s common stock (or the payment of dividends
to Parent to fund the payment by Parent of dividends on its common stock) following any
public offering of common stock of Parent or the Company, as the case may be, after the date
of this Indenture, of up to 6.0% per annum of the net proceeds received by the Company (or
by Parent and contributed to the Company as common equity) from such public offering other
than any public offering constituting an Excluded Contribution or that was used as a basis
to Incur Contribution Indebtedness; provided, however, that the aggregate amount of all such
dividends shall not exceed the aggregate amount of Net Proceeds received by the Company (or
by Parent and contributed to the Company as common equity) from such public offering;
(10) the declaration and payment of regularly scheduled or accrued dividends to holders
of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of
the Company issued after the date of this Indenture in accordance with the terms of this
Indenture;
(11) upon the occurrence of a Change of Control and within 60 days after completion of
the offer to repurchase Notes pursuant to Section 4.15 hereof (including the purchase of all
Notes tendered), any purchase or redemption of Subordinated Obligations that are required to
be repurchased or redeemed pursuant to the terms thereof as a result of such Change of
Control, at a purchase price not greater than 101% of the outstanding principal amount
thereof (plus accrued and unpaid interest and special interest, if any);
(12) the distribution, as a dividend or otherwise of shares of Capital Stock of, or
Indebtedness owed to the Company or any Restricted Subsidiary by, Unrestricted Subsidiaries
(other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash
Equivalents);
(13) Investments that are made with Excluded Contributions;
(14) Restricted Payments to permit the making of payments pursuant to the Management
Agreement as the same is in effect on the date of this Indenture or as it may be amended
from time to time (so long as no such amendment is less advantageous to the Holders of the
Notes in any material respect than the Management Agreement as in effect on the date of this
Indenture) or for any other reasonable financial advisory, financing, underwriting or
placement fees or other reasonable fees in respect of other investment banking activities,
including, without limitation, in connection with acquisitions or divestitures, which
payments are approved by a majority of the disinterested members of the Board of Directors
of the Company in good faith;
(15) any Permitted Payments to Parent; and
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(16) Restricted Payments not to exceed $50.0 million in the aggregate since the date of
this Indenture.
The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the
date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued
by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment.
Section 4.08 Limitation on Restrictions on Distributions from Restricted Subsidiaries.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or permit to exist any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to take the following actions:
(1) pay dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness or other obligations
owed to the Company or any of its Restricted Subsidiaries;
(2) make any loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) transfer any of its property or assets to the Company or any of its Restricted
Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions
existing or by reason of:
(1) The Company’s senior credit facility, and any additional agreements governing
Indebtedness existing on the date of this Indenture, in each case, as in effect on the date
of this Indenture, and any amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings of those agreements; provided that the amendments,
restatements, modifications, renewals, supplements, refundings, replacements or refinancings
are not materially more restrictive, taken as a whole, with respect to such dividend and
other payment restrictions than those contained in those agreements on the date of this
Indenture;
(2) this Indenture, the Notes and the note guarantees;
(3) any restriction with respect to a Restricted Subsidiary that is either:
(A) pursuant to an agreement relating to any Indebtedness (i) Incurred by a
Restricted Subsidiary before the date on which such Restricted Subsidiary was
acquired by the Company, or (ii) of another Person that is assumed by the Company or
a Restricted Subsidiary in connection with the acquisition of assets from, or merger
or consolidation with, such Person and is outstanding on the date of such
acquisition, merger or consolidation; provided that any restriction with respect to
a Restricted Subsidiary pursuant to an agreement relating to Indebtedness Incurred
either as consideration in, or for the provision of any portion of the funds or
credit support used to consummate, the transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was
acquired by the Company, or such acquisition of assets, merger or consolidation
shall not be permitted pursuant to this clause (A); or
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(B) pursuant to any agreement, not relating to any Indebtedness, existing when
a Person becomes a Subsidiary of the Company or acquired by the Company or any of
its Subsidiaries, that, in each case, is not created in contemplation of such Person
becoming such a Subsidiary or such acquisition (it being understood for purposes of
this clause (B) that if another Person is the Successor Company, any Subsidiary or
agreement thereof shall be deemed acquired or assumed by the Company when such
Person becomes the Successor Company), and, in the case of clauses (A) and (B),
which restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person, or the properties or assets of the Person, so
acquired;
(4) any restriction with respect to a Restricted Subsidiary pursuant to an agreement (a
“Refinancing Agreement”) that effects a refinancing, extension, renewal or replacement of
Indebtedness under an agreement referred to in this Section 4.08 (an “Initial Agreement”) or
contained in any amendment to an Initial Agreement; provided that the restrictions contained
in any such Refinancing Agreement or amendment are not materially more restrictive, taken as
a whole, than the restrictions contained in the Initial Agreement or Agreements to which
such Refinancing Agreement or amendment relates;
(5) any restriction that is a customary restriction on subletting, assignment or
transfer of any property or asset that is subject to a lease, license, asset sale or similar
contract, or on the assignment or transfer of any lease, license or other contract;
(6) any restriction by virtue of a transfer, agreement to transfer, option, right, or
Lien with respect to any property or assets of the Company or any Restricted Subsidiary not
otherwise prohibited by this Indenture;
(7) any restriction contained in mortgages, pledges or other agreements securing
Indebtedness of the Company or a Restricted Subsidiary to the extent such restriction
restricts the transfer of the property subject to such mortgages, pledges or other security
agreements;
(8) any restriction with respect to a Restricted Subsidiary, or any of its property or
assets, imposed pursuant to an agreement for the sale or disposition of all or substantially
all the Capital Stock or assets of such Restricted Subsidiary, or the property or assets
that are subject to such restriction, pending the closing of such sale or disposition;
(9) any restriction existing by reason of applicable law, rule, regulation or order;
(10) provisions limiting the disposition or distribution of assets or property in joint
venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements
and other similar agreements entered into with the approval of the Company’s Board of
Directors, which limitation is applicable only to the assets that are the subject of such
agreements;
(11) restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;
(12) restrictions existing under Indebtedness or other contractual requirements of a
Receivables Subsidiary in connection with a Qualified Receivables Transaction; provided that
such restrictions apply only to such Receivables Subsidiary;
61
(13) restrictions contained in Indebtedness incurred by a Foreign Subsidiary that is
permitted to be incurred pursuant to Section 4.09 hereof; provided that such restrictions
relate only to one or more Foreign Subsidiaries; or
(14) restrictions contained in Indebtedness that is permitted to be incurred pursuant
to Section 4.09 hereof; provided that such restrictions are not materially more restrictive,
taken as a whole, than the restrictions permitted by clauses (1) and (2) of this paragraph.
Section 4.09 Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, Incur any
Indebtedness; provided, however, that the Company and any Restricted Subsidiary of the Company that
is a Guarantor may Incur Indebtedness if, on the date of the Incurrence of such Indebtedness, the
Company’s Consolidated Coverage Ratio would be greater than 2.0 to 1.0.
(b) The provisions of Section 4.09(a) hereof will not prohibit the Incurrence of any of the
following items of Indebtedness (collectively, “Permitted Debt”):
(1) the Incurrence by the Company and any of its Restricted Subsidiaries of additional
Indebtedness and letters of credit under one or more Credit Facilities in an aggregate
principal amount at any one 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 Subsidiaries thereunder) not to exceed the greater of (a) $785.0 million
less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any
of its Restricted Subsidiaries since the date of this Indenture to repay any term
Indebtedness under a Credit Facility or to repay any revolving credit Indebtedness under a
Credit Facility and effect a corresponding commitment reduction thereunder pursuant to
Section 4.10 hereof or (b) the amount of the Borrowing Base as of the date of such
Incurrence, in each case less the aggregate amount of all commitment reductions with respect
to any revolving credit borrowings under a Credit Facility that have been made by the
Company or any of its Restricted Subsidiaries resulting from or relating to the formation of
any Receivables Subsidiary or the consummation of any Qualified Receivables Transaction;
(2) the Guarantee by the Company or any Guarantor of Indebtedness of the Company or a
Restricted Subsidiary that was permitted to be Incurred by another provision of this Section
4.09;
(3) the Incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided,
however, that any subsequent issuance or transfer of Capital Stock that results in any such
Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the
Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is not
the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to
constitute an Incurrence of such Indebtedness by the Company or such Restricted Subsidiary,
as the case may be, that was not permitted by this clause;
(4) the Incurrence by the Company and the Guarantors of Indebtedness represented by the
Notes and the note guarantees to be issued on the date of this Indenture and the Exchange
Notes and the related note guarantees to be issued pursuant to the Registration Rights
Agreement;
(5) the Incurrence by the Company and any Restricted Subsidiary of Indebtedness
existing on the date of this Indenture;
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(6) the Incurrence by the Company or any of its Restricted Subsidiaries of Refinancing
Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or
replace Indebtedness (other than intercompany Indebtedness) that was permitted by this
Indenture to be Incurred under the first paragraph of this Section or clauses (2), (4), (5),
(6), (7), (14), (15) or (16) of this paragraph;
(7) the Incurrence by the Company or any Restricted Subsidiary of Indebtedness
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 design, construction or improvement of property, plant or
equipment used in the business of the Company or a Restricted Subsidiary, in an aggregate
principal amount, including all Refinancing Indebtedness Incurred to refund, refinance or
replace any Indebtedness Incurred pursuant to this clause (7), not to exceed 2.5% of
Consolidated Tangible Assets at any time outstanding measured at the time of Incurrence;
(8) the Incurrence by the Company or any Restricted Subsidiary of Hedging Obligations
that are Incurred in the ordinary course of business and not for speculative purposes;
(9) the Incurrence by the Company or any Restricted Subsidiary of Indebtedness
evidenced by letters of credit issued in the ordinary course of business to secure workers’
compensation and other insurance coverage;
(10) the Incurrence by the Foreign Subsidiaries of Indebtedness if, at the time of
Incurrence of such Indebtedness, and after giving effect thereto, the aggregate principal
amount of all Indebtedness of the Foreign Subsidiaries Incurred pursuant to this clause (10)
and then outstanding does not exceed the greater of (x) $50.0 million and (y) an amount
equal to 50% of the consolidated book value of the inventories of the Foreign Subsidiaries
measured at the time of Incurrence;
(11) the Incurrence by a Receivables Subsidiary of Indebtedness in a Qualified
Receivables Transaction that is without recourse to the Company or to any other Restricted
Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its
assets and, as to the Company or any Restricted Subsidiary of the Company, other than
pursuant to representations, warranties, covenants and indemnities customary for such
transactions) and is not Guaranteed by any such Person;
(12) the Incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in respect of workers’ compensation claims, self-insurance obligations, letters
of credit (not supporting Indebtedness for borrowed money), bankers’ acceptances,
performance and surety bonds in the ordinary course of business;
(13) Indebtedness arising from agreements of the Company or a Restricted Subsidiary
providing for indemnification, contribution, adjustment of purchase price, earn out or
similar obligations, in each case, incurred or assumed in connection with the disposition of
any business or assets of the Company or any Restricted Subsidiary or Capital Stock of a
Restricted Subsidiary; provided that the maximum aggregate liability in respect of all such
Indebtedness Incurred pursuant to this clause (13) shall at no time exceed the gross
proceeds actually received by the Company and its Restricted Subsidiaries in connection with
such disposition;
(14) Contribution Indebtedness;
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(15) Indebtedness of Persons that are acquired by the Company or any Restricted
Subsidiary or merged into the Company or a Restricted Subsidiary in accordance with the
terms of this Indenture; provided that (a) such Indebtedness is not incurred in
contemplation of such acquisition or merger; and (b) after giving effect to such acquisition
or merger, either (x) the Company would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Consolidated Coverage Ratio test set forth in the first
paragraph of this Section 4.09 or (y) the Consolidated Coverage Ratio of the Company and its
Restricted Subsidiaries is no less than such Consolidated Coverage Ratio immediately prior
to such acquisition or merger; and
(16) the Incurrence by the Company or any Restricted Subsidiary of Indebtedness, which
may include Indebtedness under Credit Facilities, in an aggregate principal amount not to
exceed $50.0 million outstanding at any one time.
For purposes of determining compliance with this Section 4.09, in the event that an item of
proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt
described in clauses (1) through (16) above, or is entitled to be Incurred pursuant to Section
4.09(a) hereof, the Company will be permitted to classify such item of Indebtedness on the date of
its Incurrence, or later reclassify, all or a portion of such item of Indebtedness, in any manner
that complies with this Section 4.09. Indebtedness outstanding under the Company’s senior credit
facility on the date on which Notes are first issued and authenticated under this Indenture will
initially be deemed to have been Incurred in reliance on the exception provided by clause (1) of
the definition of Permitted Debt. In addition, for purposes of determining compliance with this
Section, the accrual of interest, the accretion or amortization of original issue discount, the
payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms
(including any payment of PIK Interest on the Notes in the form of Additional Notes) will not be
deemed to be an Incurrence of Indebtedness for purposes of this Section; provided that the amount
thereof shall be included in Consolidated Interest Expense of the Company as accrued.
The Company will not permit any Unrestricted Subsidiary to Incur any Indebtedness other than
Non-Recourse Debt. However, if any such Indebtedness ceases to be Non-Recourse Debt, then such
event shall constitute an Incurrence of Indebtedness by the Company or a Restricted Subsidiary.
Section 4.10 Limitation on Sales of Assets.
(a) Neither the Company nor any Restricted Subsidiary shall make any Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market Value of the
assets or Equity Interests issued or sold or otherwise disposed of;
(2) at least 75% of the consideration received in the Asset Sale by the Company or such
Restricted Subsidiary is in the form of cash. For the purposes of this provision, the
following are deemed to be cash:
(A) Cash Equivalents;
(B) the assumption of Indebtedness of the Company, other than Disqualified
Stock of the Company, or any Restricted Subsidiary;
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(C) Indebtedness of any Restricted Subsidiary that is no longer a Restricted
Subsidiary as a result of such Asset Sale;
(D) securities received by the Company or any Restricted Subsidiary from the
transferee that are converted by the Company or such Restricted Subsidiary into cash
within 60 days after the Asset Sale;
(E) an amount equal to the fair market value of Indebtedness of the Company or
any Restricted Subsidiary received by the Company or a Restricted Subsidiary as
consideration for any Asset Sale, determined at the time of receipt of such
Indebtedness by the Company or such Restricted Subsidiary; and
(F) consideration consisting of Additional Assets;
(3) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the
Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net
Proceeds:
(A) to repay Indebtedness and other Obligations under a Credit Facility and, if
the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce
commitments with respect thereto;
(B) to acquire all or substantially all of the assets of, or any Capital Stock
of, another Permitted Business, if, after giving effect to any such acquisition of
Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the
Company;
(C) to make a capital expenditure; or
(D) to acquire Additional Assets.
Pending the final application of any Net Proceeds, the Company may temporarily reduce
revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not
prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as provided in clause (3)
of paragraph (a) of this Section 4.10 will be deemed to constitute “Excess Proceeds.” When the
aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will make an Asset Sale
Offer to all Holders of Notes and, at the Company’s option, holders of other Indebtedness that is
pari passu with the Notes to purchase the maximum principal amount of Notes and such other pari
passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset
Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest
(including special interest, if any) to the date of purchase, and will be payable in cash. If any
Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess
Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal
amount of Notes and other pari passu Indebtedness tendered into any Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness
to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of
Excess Proceeds will be reset at zero.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws or regulations are
applicable in connection with the repurchase of Notes pursuant to this Section 4.10 and Section
3.09 hereof, in each
65
case, to the extent applicable. To the extent that the provisions of any securities laws or
regulations conflict with the Asset Sale provisions of this Section 4.10 or Section 3.09 hereof,
the Company will comply with the applicable securities laws and regulations and will not be deemed
to have breached its obligations under this Section 4.10 or Section 3.09 hereof as a result of such
compliance.
The Company’s senior credit facility will contain, and future agreements may contain,
prohibitions of certain events, including events that would constitute an Asset Sale and including
repurchases of or other prepayments in respect of the Notes. The exercise by the Holders of Notes
of their right to require the Company to repurchase Notes upon an Asset Sale could cause a default
under these other agreements, even if the Asset Sale itself does not, due to the financial effect
of such repurchases on the Company. In the event an Asset Sale occurs at a time when the Company
is prohibited from purchasing Notes, the Company could seek the consent of its other lenders and
noteholders to the purchase of Notes or could attempt to refinance the borrowings that contain such
prohibition. If the Company does not obtain such a consent or repay such borrowings, the Company
will remain prohibited from purchasing Notes. In that case, the Company’s failure to purchase
tendered Notes would constitute an Event of Default under this Indenture which could, in turn
constitute a default under the other Indebtedness. Finally, the Company’s ability to pay cash to
the Holders upon a repurchase may be limited by the Company’s then existing financial resources.
There can be no assurance that sufficient funds will be available when necessary to make any
required repurchases.
Section 4.11 Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, engage
in any transaction or series of related transactions involving aggregate consideration in excess of
$5.0 million, including the purchase, sale, lease or exchange of any property or the rendering of
any service with any Affiliate of the Company (an “Affiliate Transaction”) on terms that:
(1) taken as a whole are less favorable to the Company or such Restricted Subsidiary
than the terms that could be obtained at the time of such transaction in arm’s-length
dealings with a nonaffiliate; and
(2) in the event such Affiliate Transaction involves an aggregate amount in excess of
$15.0 million, has not been approved by a majority of the members of the Board of Directors
having no material personal financial interest in such Affiliate Transaction. If there are
no such Board members, then the Company must obtain a Fairness Opinion. A “Fairness Opinion”
means an opinion from an independent investment banking firm, accounting firm or appraiser
of national standing which indicates that the terms of such transaction are fair to the
Company or such Restricted Subsidiary from a financial point of view.
(b) The provisions of Section 4.11(a) hereof shall not prohibit the following actions:
(1) any Restricted Payment permitted by the provisions of Section 4.07 hereof or any
Permitted Investment;
(2) the performance of the obligations of the Company or a Restricted Subsidiary under
any employment contract, collective bargaining agreement, service agreement, employee
benefit plan, related trust agreement, severance agreement or any other similar arrangement
entered into in the ordinary course of business;
(3) payment of compensation, performance of indemnification or contribution obligations
in the ordinary course of business;
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(4) any issuance, grant or award of stock, options or other securities, to employees,
officers or directors;
(5) any transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries or any transaction between a Receivables Subsidiary and any Person
in which the Receivables Subsidiary has an Investment;
(6) any other transaction arising out of agreements existing on the date of this
Indenture and described in the “Certain relationships and related transactions” section of
the Offering Memorandum;
(7) transactions with suppliers or other purchasers or sellers of goods or services, in
each case in the ordinary course of business and on terms no less favorable to the Company
or the Restricted Subsidiary than those that could be obtained at such time in arm’s-length
dealings with a nonaffiliate;
(8) transactions with a Person (other than an Unrestricted Subsidiary of the Company)
that is an Affiliate of the Company solely because the Company owns, directly or through a
Restricted Subsidiary, Capital Stock of, or controls, such Person;
(9) payments described in the Offering Memorandum under the heading “Use of proceeds”;
(10) the issuance of Capital Stock (other than Disqualified Stock) of the Company to
any Person, or a contribution to the common equity capital of the Company;
(11) the payment of rent due under the Master Lease, dated as of March 23, 1999,
between Gustine Sixth Avenue Associates, Ltd. and General Nutrition, Incorporated, as in
effect on the date of this Indenture or as amended in compliance with the provisions of this
Section 4.11; and
(12) payments made pursuant to the Management Agreement as the same is in effect on the
date of this Indenture or as it may be amended from time to time (so long as no such
amendment is less advantageous to the Holders of the Notes in any material respect than the
Management Agreement as in effect on the date of this Indenture) or any financial advisory,
financing, underwriting or placement fees or other reasonable fees in respect of other
investment banking activities, including, without limitation, in connection with
acquisitions or divestitures, which payments are approved by a majority of the disinterested
members of the Board of Directors of the Company in good faith.
Section 4.12 Limitation on Liens.
Neither the Company nor any Restricted Subsidiary will, directly or indirectly, create, incur,
assume or suffer to exist any Lien of any kind on any of its properties or assets, including
Capital Stock, whether owned on the date of this Indenture or thereafter acquired, except Permitted
Liens.
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Section 4.13 [Reserved]
Section 4.14 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:
(1) its corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents (as the same
may be amended from time to time) of the Company or any such Subsidiary; and
(2) 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 of its Subsidiaries, if the
Board of Directors 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 of the Notes.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of Notes will have the right to
require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of
$1,000 in excess thereof) of that Holder’s Notes pursuant to a Change of Control Offer on the terms
set forth in this Indenture. In the Change of Control Offer, the Company will offer a Change of
Control Payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus
accrued and unpaid interest (including special interest, if any) on the Notes repurchased to the
date of purchase, subject to the rights of Holders of Notes 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 will mail a notice to each Holder describing the transaction or transactions
that constitute the Change of Control and offering to repurchase Notes on the Change of Control
Payment Date specified in the notice, which date will be no earlier than 30 days and no later than
60 days from the date such notice is mailed, pursuant to the procedures required by this Indenture
and described in such notice.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of Notes pursuant to this Section 4.15. To the extent
that the provisions of any securities laws or regulations conflict with the provisions of this
Section 4.15, the Company will comply with the applicable securities laws and regulations and will
not be deemed to have breached its obligations under this Section 4.15 as a result of such
compliance.
(b) On the Change of Control Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the
Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions of Notes properly tendered; and
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(3) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company.
The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of
Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any. The Company will publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
The provisions described above that require the Company to make a Change of Control Offer
following a Change of Control will be applicable whether or not any other provisions of this
Indenture are applicable. Except as described above with respect to a Change of Control, this
Indenture does not contain provisions that permit the Holders of the Notes to require that the
Company repurchase or redeem the Notes in the event of a takeover, recapitalization or similar
transaction.
(c) The Company will not be required to make a Change of Control Offer upon a Change of
Control if (1) a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 4.15 and Section 3.09
hereof and purchases all Notes properly tendered and not withdrawn under the Change of Control
Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof unless and until
there is a default in payment of the applicable redemption price.
Section 4.16 No Amendment to Subordination Provisions.
Without the consent of the Holders of at least a majority in aggregate principal amount of the
Notes then outstanding, the Company will not amend, modify or alter the Senior Subordinated Note
Indenture in any way to:
(1) increase the rate of or change the time for payment of interest on any Senior
Subordinated Notes;
(2) increase the principal of, advance the final maturity date of or shorten the
Weighted Average Life to Maturity of any Senior Subordinated Notes;
(3) alter the redemption provisions or the price or terms at which the Company is
required to offer to purchase any Senior Subordinated Notes; or
(4) amend the provisions of Article 10 of the Senior Subordinated Note Indenture (which
relate to subordination).
Section 4.17 Additional Note Guarantees.
If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic
Subsidiary after the date of this Indenture, then the Company will cause that newly acquired or
created Domestic Subsidiary to execute a Note Guarantee pursuant to a supplemental indenture in
form and substance satisfactory to the Trustee and deliver an Opinion of Counsel to the Trustee
within 10 Business Days of the date on which it was acquired or created to the effect that such
supplemental indenture has been duly authorized, executed and delivered by that Domestic Subsidiary
and constitutes a valid and binding agreement of that Domestic Subsidiary, enforceable in
accordance with its terms (subject to
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customary exceptions); provided that any Domestic Subsidiary that constitutes an Immaterial
Subsidiary need not become a Guarantor until such time as it ceases to be an Immaterial Subsidiary.
The form of such Note Guarantee is attached as Exhibit E hereto.
Section 4.18 Designation of Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary
is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding
Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as
Unrestricted will be deemed to be an Investment made as of the time of the designation and will
reduce the amount available for Restricted Payments under the provisions of Section 4.07 hereof or
under one or more clauses of the definition of Permitted Investments, as determined by the Company.
That designation will only be permitted if the Investment would be permitted at that time and if
the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board
of Directors of the Company may redesignate any Unrestricted Subsidiary to be a Restricted
Subsidiary if that redesignation would not cause a Default.
Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced
to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of
Directors giving effect to such designation and an Officer’s Certificate certifying that such
designation complied with the preceding conditions and was permitted by the provisions of Section
4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to
be Incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is
not permitted to be Incurred as of such date under the provisions of Section 4.09 hereof, the
Company will be in default of such Section 4.09 hereof. The Board of Directors of the Company may
at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company;
provided that such designation will be deemed to be an Incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such
designation will only be permitted if (1) such Indebtedness is permitted under the provisions of
Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in
existence following such designation.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
(a) The Company shall not, in a single transaction or a series of related transactions,
consolidate with or merge with or into, and the Company shall not, and shall not permit any of its
Restricted Subsidiaries to, convey or transfer all or substantially all the consolidated assets of
the Company and its Restricted Subsidiaries to, any Person, unless:
(1) the resulting, surviving or transferee Person (the “Successor Company”) will be a
Person organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia;
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(2) the Successor Company, if not the Company, will expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Notes, this Indenture and the Registration Rights
Agreement;
(3) immediately after giving effect to such transaction or series of transactions no
Default or Event of Default exists;
(4) either (a) the Company or the Successor Company, if the Company is not the
continuing obligor under this Indenture, will, at the time of such transaction or series of
transactions and after giving pro forma effect thereto as if such transaction or series of
transactions had occurred at the beginning of the applicable four-quarter period, be
permitted to Incur at least an additional $1.00 of Indebtedness under paragraph (a) of
Section 4.09 hereof or (b) the pro forma Consolidated Coverage Ratio of the Successor
Company immediately after giving effect to such transaction would be no less than the
Consolidated Coverage Ratio of the Company immediately prior to such transaction; and
(5) the Company will have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each to the effect that such consolidation, merger or transfer and such
supplemental indenture, if any, comply with this Indenture; provided that:
(a) in giving such opinion such counsel may rely on such Officer’s Certificate
as to any matters of fact, including without limitation as to compliance with the
foregoing clauses; and
(b) no Opinion of Counsel will be required for a consolidation, merger or
transfer described in Section 5.01(c) hereof.
In addition, the Company may not, directly or indirectly, lease all or substantially all of
its properties or assets, in one or more related transactions, to any other Person.
(b) The Successor Company will be substituted for, and may exercise every right and power of,
the Company under this Indenture. Thereafter, the Company (if it is not the Successor Company) will
be relieved of all obligations and covenants under this Indenture, except that, in the case of a
conveyance or transfer of less than all its assets, the Company will not be released from the
obligation to pay the principal of and interest on the Notes.
(c) The provisions of this Section 5.01 do not prohibit:
(1) any Restricted Subsidiary from consolidating with, merging into or
transferring all or part of its properties and assets to the Company or any other
Restricted Subsidiary; and
(2) a merger of the Company with an Affiliate incorporated or organized for the
purpose of reincorporating or reorganizing the Company in another jurisdiction to
realize tax or other benefits.
The definition of “Successor Company” will not include companies formed by consolidations,
mergers or transfers of properties or assets pursuant to this Section 5.01(c).
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a) Each of the following is an “Event of Default”:
(1) a default in any payment of interest (including special interest, if any) on or
with respect to any Note when due, continued for 30 days;
(2) a default in the payment of principal of, or premium, if any, on any Note when due
at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration
or otherwise;
(3) the failure by the Company or any of its Restricted Subsidiaries to comply with its
obligations under Article 5 hereof;
(4) the failure by the Company or any of its Restricted Subsidiaries to comply with its
other agreements contained in the Notes or this Indenture for 60 days after written notice
from the Trustee or the Holders of at least 25% in principal amount of the outstanding
Notes;
(5) the failure by the Company or any Significant Subsidiary to pay any Indebtedness
within any applicable grace period after final maturity or the acceleration of any such
Indebtedness by the Holders thereof because of a default if the total amount of such
Indebtedness unpaid or accelerated exceeds $25.0 million;
(6) the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary pursuant to or within the meaning of 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, or
(E) generally is not paying its debts as they become due;
(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(A) is for relief against the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary in an
involuntary case;
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(B) appoints a custodian of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary; or
(C) orders the liquidation of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days;
(8) the rendering of any judgment or decree for the payment of money in an amount, net
of any insurance or indemnity payments actually received in respect thereof prior to or
within 90 days from the entry thereof, or to be received in respect thereof in the event any
appeal thereof shall be unsuccessful, in excess of $25.0 million against the Company or a
Significant Subsidiary that is not discharged, bonded or insured by a third Person if either
an enforcement proceeding thereon is commenced, or such judgment or decree remains
outstanding for a period of 90 days and is not discharged, waived or stayed; or
(9) the failure of any note guarantees of the Notes by a Guarantor that is a
Significant Subsidiary to be in full force, except as contemplated by the terms thereof or
of this Indenture, or the denial in writing by any such Guarantor of its obligations under
this Indenture or any such Guarantee if such Default continues for 10 days.
(b) The events listed in Section 6.01(a) hereof will constitute Events of Default regardless
of their reasons, whether voluntary or involuntary or whether effected by operation of law or
pursuant to any judgment, decree, order, rule or regulation of any administrative or governmental
body.
Section 6.02 Acceleration.
If an Event of Default, other than a Default relating to certain events of bankruptcy,
insolvency or reorganization of the Company or any Significant Subsidiary, occurs and is
continuing, either the Trustee, by notice to the Company, or the Holders of at least a majority in
principal amount of the outstanding Notes, by notice to the Company and the Trustee, may declare
the principal of and accrued but unpaid interest on all of such Notes to be due and payable.
Upon such a declaration, such principal and interest will be due and payable immediately;
provided that so long as any Indebtedness is outstanding, such acceleration will not be effective
until the earlier of (1) the acceleration of such Indebtedness and (2) five Business Days after the
Holders of such Indebtedness or the Representative thereof receive notice from the Company of the
acceleration with respect to the payment of the Notes. If an Event of Default relating to events of
bankruptcy, insolvency or reorganization of the Company occurs and is continuing, the Notes will
become immediately due and payable without any declaration or other act on the part of the Trustee
or any Holder. Under certain circumstances, the Holders of a majority in principal amount of the
outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.
Section 6.03 Other Remedies.
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If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, interest (including special interest, if any) and premium, if
any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee 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 or any Holder of a Note
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.
Holders of not less than a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal, interest (including special interest, if any) and premium,
if any, on the Notes (including in connection with an offer to purchase); provided, however, that
the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind
an acceleration and its consequences, including any related payment default that resulted from such
acceleration, if the rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest (including special interest, if any)
and premium, if any, that has become due solely because of the acceleration) have been cured or
waived. 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.
Section 6.05 Control by Majority.
The Holders of a majority in principal amount of the Notes outstanding are given the right to
direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. The Trustee, however, may
refuse to follow any direction that:
(a) conflicts with law or this Indenture;
(b) the Trustee determines is unduly prejudicial to the rights of any other Holder; or
(c) would involve the Trustee in personal liability.
Before taking any action under this Indenture, the Trustee will be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused by taking or not
taking such action.
Section 6.06 Limitation on Suits.
Except to enforce the right to receive payment of principal, interest (including special
interest, if any) and premium, if any, when due, no Holder may pursue any remedy with respect to
this Indenture or the Notes unless:
(1) such Holder has previously given to the Trustee written notice that an Event of
Default is continuing;
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(2) Holders of at least 25% in aggregate principal amount of the then outstanding Notes
have requested to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee has not complied with the request within 60 days after receipt of the
request and the offer of security or indemnity; and
(5) Holders of a majority in principal amount of the Notes have not given the Trustee a
direction inconsistent with such request within such 60-day period.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a
Note or to obtain a preference or priority over another Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the provisions of this Indenture
relating to the right of any Holder of a Note to receive payment of principal, interest (including
special interest, if any) and premium, if any, on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase) may not be changed, and
the right of any Holder, or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired, in each case, without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal, interest (including special interest, if
any) and premium, if any, remaining unpaid on, the Notes and interest on overdue principal and, to
the extent lawful, interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
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 (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon 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, 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, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under 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 that 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
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to authorize the Trustee 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, or to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in
the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.07
hereof, including payment of all compensation, expenses and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
interest (including special interest, if any) and premium, if any, ratably, without
preference or priority of any kind, according to the amounts due and payable on the Notes
for principal, interest (including special interest, if any) and premium, if any,
respectively; and
Third: to the Company or to such party as a court of competent jurisdiction shall
direct.
The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.
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 for any action taken or omitted by it as a Trustee, 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 and expenses, 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 6.11 does not apply to a
suit by the Company, a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in aggregate 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 will exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
its exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the express provisions of
this Indenture and 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
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(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
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee will examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) 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:
(1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(2) the Trustee will not be liable for any error of judgment made in good faith by a
Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee will 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 will require the Trustee to expend or risk its own funds or
incur any liability. In case an Event of Default occurs and is continuing, the Trustee will be
under no obligation to exercise any of its rights and powers under this Indenture at the request of
any Holders, unless such Holder has offered to the Trustee reasonable security and indemnity
against any loss, liability or expense. Before taking any action under this Indenture, the Trustee
will be entitled to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
(f) The Trustee will not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
(a) In connection with the Trustee’s rights and duties under this Indenture, 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.
(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate
or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits
to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel will 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 its attorneys and agents and will not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee will not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
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(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company will be sufficient if signed by an Officer of the Company.
(f) Except with respect to Section 4.01 hereof, the Trustee shall have no duty to inquire as
to the performance of the Company’s covenants in Article Four hereof. In addition, the Trustee
shall not be deemed to have knowledge of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Sections 6.01(a)(1), 6.01(a)(2) and 4.01 hereof or (ii) any Default
or Event of Default of which the Trustee shall have received written notification in the manner set
forth in this Indenture or an Officer in the Corporate Trust Office of the Trustee shall have
obtained actual knowledge. Delivery of reports, information and documents to the Trustee under
Section 4.03 hereof is for informational purposes only and the Trustee’s receipt of the foregoing
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 an Officer’s Certificate).
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 or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee (if this Indenture has been qualified under the TIA) or resign. Any Agent may
do the same with like rights and duties.
Section 7.04 Trustee’s Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default occurs and is continuing and is known to the Trustee, the Trustee must mail to
each Holder, with a copy to the Company, notice of the Default within 90 days after it occurs.
Except in the case of a Default in the payment of principal, interest (including special interest,
if any) and premium, if any, on any Note, including an accelerated payment and the failure to make
a payment on the Change of Control Payment Date pursuant to a Change of Control offer, the Trustee
may withhold notice if and so long as a committee of its Trust Officers in good faith determines
that withholding notice is in the interests of the Holders of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee will mail to the Holders of the
Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no
event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date,
no report need be
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transmitted). The Trustee also will comply with TIA § 313(b)(2). The Trustee will also
transmit by mail all reports as required by TIA § 313(c).
(b) A copy of each report at the time of its mailing to the Holders of Notes will be mailed by
the Trustee to the Company and filed by the Trustee with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA § 313(d). The Company will promptly notify the Trustee
when the Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Company will pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder. The Trustee’s compensation will not be
limited by any law on compensation of a trustee of an express trust. The Company will reimburse
the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses will include the
reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
(b) The Company and the Guarantors will indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and expenses of enforcing
this Indenture against the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other
Person) or liability in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee will notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company
or any of the Guarantors of their obligations hereunder. The Company or such Guarantor will defend
the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and
the Company will 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 will not be
unreasonably withheld.
(c) The obligations of the Company and the Guarantors under this Section 7.07 will survive the
satisfaction and discharge of this Indenture or the resignation or removal of the Trustee.
(d) To secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, the
Trustee will have a Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien
will survive the satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(a)(6) or (7) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.08.
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(b) The Trustee may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in aggregate principal amount of
the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) 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;
(3) a custodian or public officer takes charge of the Trustee or its property; or
(4) 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 will promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
(d) If a successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in
aggregate principal amount of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) 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 hereof, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of its succession to
Holders. The retiring Trustee will 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 obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to another corporation, the successor corporation without any further
act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
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This Indenture will always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time elect to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company and each of the Guarantors will, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with
respect to all outstanding Notes (including the note guarantees) and this Indenture on the date the
conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose,
Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes (including the note
guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section
8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and
to have satisfied all their other obligations under such Notes, the note guarantees and this
Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which will survive until
otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments in respect of the
principal, interest or premium (including special interest, if any), if any, on such Notes
when such payments are due from the trust referred to in Section 8.04 hereof;
(2) the Company’s obligations with respect to such Notes under Article 2 and Section
4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s and the Guarantors’ obligations in connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company and each of the Guarantors will, subject to the satisfaction of the conditions
set forth
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in Section 8.04 hereof, be released from each of their obligations under the covenants
contained in Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 4.18
hereof and clauses (3) and (4) of Section 5.01 hereof with respect to the outstanding Notes on and
after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter,
"Covenant Defeasance”), and the Notes will thereafter be deemed not “outstanding” for the purposes
of any direction, waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all
other purposes hereunder (it being understood that such Notes will not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and note guarantees, the Company and the Guarantors may omit to comply with and
will have no liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any
other document and such omission to comply will not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such
Notes and note guarantees will be unaffected thereby. In addition, upon the Company’s exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(a)(3) through
6.01(a)(5) and 6.01(a)(8)hereof will not constitute Events of Default; provided that clauses (6)
and (7) of Section 6.01(a) hereof will continue to constitute Events of Default with respect to the
Company, but not any Significant Subsidiary.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02
or 8.03 hereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a
combination of cash in U.S. dollars and non-callable Government Securities, in amounts as
will be sufficient, in the opinion of a nationally recognized investment bank, appraisal
firm or firm of independent public accountants, to pay the principal of, or interest and
premium (including special interest, if any) on, the outstanding Notes on the stated date
for payment thereof or on the applicable redemption date, as the case may be, and the
Company must specify whether the Notes are being defeased to such stated date for payment or
to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the Company must deliver to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that:
(A) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling; or
(B) 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 will
confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal 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 Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.03 hereof, the Company must deliver to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the
Holders
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of the outstanding Notes 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;
(4) no Default or Event of Default has occurred and is continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing of funds to
be applied to such deposit) and the deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or any Guarantor is a
party or by which the Company or any Guarantor is bound;
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officer’s Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Notes over
the other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others; and
(7) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government Obligations (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the
outstanding Notes will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of principal, interest
(including special interest, if any) and premium, if any, but such money need not be segregated
from other funds except to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable Government Obligations deposited pursuant to Section
8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in
excess of the amount thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
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Section 8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal, interest (including special interest, if any) and premium,
if any, on any Note and remaining unclaimed for two years after such principal, interest (including
special interest, if any) and premium, if any, has become due and payable shall be paid to the
Company on its request or (if then held by the Company) will be discharged from such trust; and the
Holder of such Note will thereafter be permitted to look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, will thereupon cease;
provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment, may at the expense
of the Company cause to be published once, in the
New York Times and The Wall Street Journal
(national edition), notice that such money remains unclaimed and that, after a date specified
therein, which will not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government
Obligations in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s and the Guarantors’ obligations under this
Indenture and the Notes and the note guarantees will be revived and reinstated as though no deposit
had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case
may be; provided, however, that, if the Company makes any payment of principal, interest (including
special interest, if any) and premium, if any, on any Note following the reinstatement of its
obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee
may amend or supplement this Indenture or the Notes or the note guarantees without the consent of
any Holder of Note:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption by a successor corporation of the obligations of the
Company under this Indenture;
(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 Code, or in a manner such that the uncertificated Notes
are described in Section 163(f)(2)(B) of the Code;
(4) to add Guarantees with respect to the Notes, to secure the Notes, to add to the
covenants of the Company for the benefit of the Holders or to surrender any right or power
conferred upon the Company;
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(5) to make any change that does not adversely affect the rights of any Holder;
(6) to comply with any requirement of the SEC in connection with the qualification of
this Indenture under the TIA; or
(7) to conform the text of this Indenture, the note guarantees or the Notes to any
provision of the Description of Notes to the extent that such provision in the Description
of Notes was intended to be a verbatim recitation of a provision of this Indenture, the note
guarantees or the Notes.
Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company
and the Guarantors in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee may in its discretion, but will not be
obligated to, enter into such amended or supplemental indenture that affects its own rights, duties
or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Indenture (including, without limitation, Section 3.09, 4.10 and 4.15 hereof) and
the Notes and the note guarantees with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (including, without limitation, Additional
Notes, if any) voting as a single class (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or
Event of Default in the payment of the principal, interest (including special interest, if any) and
premium, if any, on the Notes, except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this Indenture or the Notes or the note
guarantees may be waived with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if
any) voting as a single class (including, without limitation, consents obtained in connection with
a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof shall
determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee will join with the Company and the Guarantors in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may
in its discretion, but will not be obligated to, enter into such amended or supplemental indenture.
The consent of the Holders of the Notes is not necessary under this Section 9.02 to approve
the particular form of any proposed amendment, supplement or waiver. It is sufficient if such
consent approves the substance of the proposed amendment, supplement or waiver.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company is required to mail to the Holders of the Notes a notice briefly describing such amendment,
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supplement or waiver. However, the failure to give such notice to all such Holders of the
Notes, or any defect in such notice, will not impair or affect the validity of the amendment,
supplement or waiver.
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 rate of or extend the time for payment of interest on any Note;
(3) reduce the principal amount 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 as described in the provisions of Section 3.07
hereof, other than premium payable under Section 4.15 hereof;
(5) make any Note payable in money other than that stated in the Note;
(6) make any change in the provisions of this Indenture relating to the rights of
Holders of Notes to receive payment of principal, interest (including special interest, if
any) and premium, if any, on the Notes on or after the respective due dates expressed in the
Notes or impair the rights of any Holder of Notes to xxx for the enforcement of any payment
of principal, interest (including special interest, if any) and premium, if any, on such
Holder’s Notes on or after the respective due dates;
(7) release any Guarantor from any of its obligations under its note guarantee or this
Indenture, except in accordance with the terms of this Indenture; or
(8) make any change in the amendment provisions that require each Holder’s consent or
in the waiver provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will be set forth in an amended
or supplemental indenture that complies with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective (as determined by the Company and
which may be prior to any such amendment, supplement or waiver becoming operative), a consent to it
by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder
of a Note 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 of a Note or
subsequent Holder of a Note may revoke the consent as to its Note (if so provided pursuant to any
solicitation of such consent) if the Trustee receives written notice of revocation before the date
the amendment, supplement or waiver becomes effective (as determined by the Company and which may
be prior to any such amendment, supplement or waiver becoming operative). An amendment, supplement
or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
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The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not affect the validity and
effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee and if such amendment or supplement does so adversely affect the
rights, duties, liabilities or immunities of the Trustee, the Trustee may, in its discretion, but
shall not be obligated to sign such amendment or supplement. In executing any amended or
supplemental indenture, the Trustee will be entitled to receive and (subject to Section 7.01
hereof) will be fully protected in relying upon, in addition to the documents required by Section
12.04 hereof, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such
amended or supplemental indenture is authorized or permitted by this Indenture.
ARTICLE 10
NOTE GUARANTEES
Section 10.01 Guarantee.
(a) Subject to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note 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, that:
(1) the principal of, premium and special interest, if any, and interest on, the Notes
will be promptly paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that 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.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
(b) The Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same
or any other circumstance which might otherwise constitute a legal or equitable discharge or
defense of a
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guarantor. 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 demands whatsoever and
covenant that this Note Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such
Holder in respect of the Notes, the Note Guarantee, to the extent theretofore discharged, will be
reinstated in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under the Note Guarantee.
Section 10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum
amount that will, after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, including any Guarantees under the
Company’s senior credit facility, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 10, result in the obligations of such
Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 10.03 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees
that a notation of such Note Guarantee substantially in the form attached as Exhibit E hereto will
be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee
and that this Indenture will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 hereof will
remain in full force and effect notwithstanding any failure to endorse on each Note a notation of
such Note Guarantee.
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If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed,
the Note Guarantee will be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, will
constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the
Guarantors.
In the event that the Company or any of its Restricted Subsidiaries creates or acquires any
Domestic Subsidiary after the date of this Indenture, if required by Section 4.17 hereof, the
Company will cause such Domestic Subsidiary to comply with the provisions of Section 4.17 hereof
and this Article 10, to the extent applicable.
Section 10.04 Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 10.05 hereof, no Guarantor may sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person) another Person, other than the Company or
another Guarantor, unless:
(1) immediately after giving effect to that transaction, no Default or Event of Default
exists; and
(2) either:
(A) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger assumes all the
obligations of that Guarantor under this Indenture, its note guarantees and the
Registration Rights Agreement pursuant to a supplemental indenture satisfactory to
the Trustee; or
(B) the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of this Indenture.
Except as set forth in Articles 4 and 5 hereof, nothing contained in this Indenture or in any
of the Notes will prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or will prevent any sale or conveyance of the property of a Guarantor as an
entirety or substantially as an entirety to the Company or another Guarantor.
Section 10.05 Releases.
The note guarantees of a Guarantor will be released:
(a) in connection with any sale or other disposition of all or substantially all of the assets
of that Guarantor (including by way of merger or consolidation) to a Person that is not (either
before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if
the sale or other disposition does not violate Section 4.10 hereof;
(b) in connection with any sale or other disposition of all of the Capital Stock of that
Guarantor to a Person that is not (either before or after giving effect to such transaction) the
Company or a Restricted Subsidiary of the Company, if the sale or other disposition does not
violate Section 4.10 hereof;
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(c) if the Company designates any Restricted Subsidiary that is a Guarantor to be an
Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture; or
(d) upon Legal Defeasance or satisfaction and discharge of this Indenture as provided in
Articles 8 or 11, respectively, hereof.
Any Guarantor not released from its obligations under its Note Guarantee as provided in this
Section 10.05 will remain liable for the full amount of principal of and interest and premium and
special interest, if any, on the Notes and for the other obligations of any Guarantor under this
Indenture as and to the extent provided in this Article 10.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect as to all Notes
issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated, except lost, stolen or destroyed Notes that
have been replaced or paid and Notes for whose payment money has theretofore been deposited
in trust and thereafter repaid to the Company, have been delivered to the Trustee for
cancellation; or
(b) all Notes that have not been delivered to the Trustee for cancellation have become
due and payable by reason of the mailing of a notice of redemption or otherwise or will
become due and payable within one year and the Company or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust solely for the
benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, without consideration of any
reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not
delivered to the Trustee for cancellation for principal, premium and special interest, if
any, and accrued interest to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing of funds to
be applied to such deposit) and the deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or any Guarantor is a
party or by which the Company or any Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be paid all sums payable by it
under this Indenture; and
(4) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or on the
redemption date, as the case may be.
In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
90
Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (b) of clause (1) of this Section 11.01, the provisions of
Sections 11.02 and 8.06 hereof will survive. In addition, nothing in this Section 11.01 will be
deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium and special interest, if any) and interest
for whose payment such money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.01 hereof 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 or any Guarantor’s Obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof;
provided that if the Company has made any payment of principal of, premium or special
interest, if any, or interest on, any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from
the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA §318(c), the imposed duties will control.
Section 12.02 Notices.
Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly
given if in writing and delivered in Person or by first class mail (registered or certified, return
receipt requested), facsimile transmission or overnight air courier guaranteeing next day delivery,
to the others’ address:
If to the Company and/or any Guarantor:
General Nutrition Centers, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Chief Legal Officer
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With a copy to:
Gardere Xxxxx Xxxxxx LLP
3000 Thanksgiving Tower
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxx
If to the Trustee:
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: 000-000-0000
Attention: Corporate Trust Services Division—Xxxxxxx Xxxxxx
The Company, any Guarantor or the Trustee, by notice to the others, may designate additional
or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will 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 transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication will also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with
respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it will mail a copy to the Trustee
and each Agent at the same time.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee, upon request:
(1) an Officer’s Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 12.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and
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(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply
with the provisions of TIA § 314(e) and must include:
(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 or she has made such
examination or investigation as is necessary to enable him or her 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.
Section 12.06 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 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of the Company or any Guarantor,
as such, will have any liability for any obligations of the Company or any Guarantor under the
Notes, this Indenture, the note guarantees 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. The waiver may not be effective to waive liabilities under the federal securities laws.
Section 12.08 Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF
NEW YORK, INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE
NEW YORK
OBLIGATIONS LAW. PRINCIPLES OF CONFLICTS OF LAW WILL NOT APPLY TO THE EXTENT THAT SUCH PRINCIPLES
WOULD REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
Section 12.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
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Section 12.10 Successors.
All agreements of the Company in this Indenture and the Notes will bind its successors. All
agreements of the Trustee in this Indenture will bind its successors. All agreements of each
Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.05
hereof.
Section 12.11 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
Section 12.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy will be an
original, but all of them together represent the same agreement.
Section 12.13 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 will in no way modify or restrict any of the terms or provisions hereof.
Section 12.14 Waiver of Jury Trial.
THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS INDENTURE, THE
NOTES OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE.
Section 12.15 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services; it being understood
that the Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.
[Signatures on following page]
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SIGNATURES
Dated as of March 16, 2007
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GENERAL NUTRITION CENTERS, INC.
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By: |
/s/
Xxxx X. Xxxxxxxx |
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Name: |
Xxxx X. Xxxxxxxx |
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Title: |
Senior Vice President, Chief Legal
Officer and Secretary |
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LASALLE BANK NATIONAL ASSOCIATION , as Trustee
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By: |
/s/
Xxxxxxx X. Xxxxxx |
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Name: |
Xxxxxxx X. Xxxxxx |
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Title: |
Vice President |
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GENERAL NUTRITION COMPANIES, INC. |
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GENERAL NUTRITION CORPORATION |
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GENERAL NUTRITION DISTRIBUTION COMPANY |
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GENERAL NUTRITION DISTRIBUTION, L.P. |
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GENERAL NUTRITION GOVERNMENT
SERVICES, INC. |
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GENERAL NUTRITION INTERNATIONAL, INC. |
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GENERAL NUTRITION INVESTMENT COMPANY |
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GENERAL NUTRITION SYSTEMS, INC. |
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GENERAL NUTRITION INCORPORATED |
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GN INVESTMENT, INC. |
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GNC (CANADA) HOLDING COMPANY |
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GNC CANADA LIMITED |
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GNC CARD SERVICES, INC. |
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GNC FRANCHISING, LLC |
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GNC US DELAWARE, INC. |
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INFORMED NUTRITION, INC. |
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NUTRA MANUFACTURING, INC. |
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NUTRA SALES CORPORATION |
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GNC FUNDING, INC. |
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By: |
/s/
Xxxx X. Xxxxxxxx |
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Name: |
Xxxx X. Xxxxxxxx |
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Title: |
Senior Vice President, Chief Legal
Officer and Secretary |
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EXHIBIT A1
[Face of Note]
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. GENERAL NUTRITION CENTERS, INC., (THE “COMPANY”)
AGREES TO PROVIDE PROMPTLY TO HOLDERS OF NOTES, UPON WRITTEN REQUEST, THE ISSUE PRICE, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY, WITH RESPECT TO THE NOTES. ANY SUCH
WRITTEN REQUEST SHOULD BE SENT TO THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT THE FOLLOWING
ADDRESS: GENERAL NUTRITION CENTERS, INC., 000 XXXXX XXXXXX, XXXXXXXXXX, XXXXXXXXXXXX 00000.
CUSIP/CINS
Senior Floating Rate Toggle Notes due 2014
GENERAL NUTRITION CENTERS, INC.
promises to pay to Cede & Co., or registered assigns,
the principal sum of DOLLARS on March 15, 2014.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
Dated: March 16, 2007
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GENERAL NUTRITION CENTERS, INC.
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By: |
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Name: |
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Title: |
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This is one of the Notes referred to
in the within-mentioned Indenture:
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LASALLE BANK NATIONAL ASSOCIATION,
as Trustee |
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By: |
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Authorized Signatory
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A1-1
[Back of Note]
Senior Floating Rate Toggle Notes due 2014
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A)(1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT, IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (5) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (BASED UPON AN OPINION OF COUNSEL IF GENERAL
NUTRITION CENTERS, INC., SO REQUESTS) OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE BLUE SKY LAWS OF THE STATES OF THE
UNITED STATES.
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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF GENERAL NUTRITION
CENTERS, INC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
A1-2
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.
(1) Interest. General Nutrition Centers, Inc., a Delaware corporation (the
“Company”), may, at its option, elect to pay interest on the notes: (1) entirely in cash
(“Cash Interest”); (2) entirely by increasing the principal amount of the outstanding notes
or by issuing PIK Notes having an aggregate principal amount equal to the amount of interest
then due and owing (“PIK Interest”); or (3) on 50% of the outstanding principal amount of
the notes in cash and on 50% of the outstanding principal amount of the notes by increasing
the principal amount of the outstanding notes or by issuing PIK Notes having an aggregate
principal amount equal to the amount of interest being paid in the form of PIK Interest
(“Partial PIK Interest"). The Company shall pay special interest, if any, payable pursuant
to the Registration Rights Agreement referred to below. The Company must elect the form of
interest payment with respect to each interest period by delivering a notice to the Trustee
at least five business days prior to the beginning of each interest period. The Trustee
shall promptly deliver a corresponding notice to the Holders. In the absence of such an
election, interest on the notes will be payable entirely in cash. Interest on the notes
will accrue at a rate equal to the Applicable LIBOR Rate plus 450 basis points. PIK Interest
on the notes will accrue at a rate equal to the Applicable LIBOR Rate plus 525 basis points
and be payable: (1) with respect to notes represented by one or more Global Notes registered
in the name of, or held by, DTC (or any successor depositary) or its nominee on the relevant
record date, by increasing the principal amount of the outstanding Global Notes, effective
as of the applicable interest payment date, by an amount equal to the amount of PIK Interest
for the applicable interest period (rounded up to the nearest $1,000); and (2) with respect
to notes represented by certificated notes, by issuing PIK Notes in certificated form, dated
as of the applicable interest payment date, in an aggregate principal amount equal to the
amount of PIK Interest for the applicable interest period (rounded up to the nearest whole
dollar). The Trustee will, at the request of the Company, authenticate and deliver such PIK
Notes in certificated form for original issuance to the holders of certificated notes on the
relevant record date, as shown by the records of the register of holders. In the event that
the Company elects to pay Partial PIK Interest for any interest period, each Holder of Notes
will be entitled to receive Cash Interest in respect of 50% of the principal amount of the
Notes held by such Holder on the relevant record date and PIK Interest in respect of 50% of
the principal amount of the Notes held by such Holder on the relevant record date. The
Company will pay interest (including special interest, if any) semi-annually in arrears on
March 15 and September 15 of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no interest has been
paid, from the date of original issuance; 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 September 15, 2007. The Company will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at the rate that is then in effect on the Notes to the
extent lawful; it will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest (including special interest,
if any) (without regard to any applicable grace periods) from time to time on demand at the
same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
(2) Method of Payment. The Company will pay interest (including special
interest, if any) on the Notes (except defaulted interest) to the Persons who are registered
Holders of Notes
A1-3
at the close of business on the March 1 or September 1 next preceding the applicable
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 2.12 of the Indenture with
respect to defaulted interest. PIK Interest will be payable by increasing the principal
amount of this global Note by an amount equal to the amount of PIK Interest for the
applicable interest period (rounded up to the nearest $1,000). Following an increase in the
principal amount of the outstanding global Notes as a result of a PIK Payment, this global
Note shall bear interest on such increased principal amount from and after the date of such
PIK Payment, and shall be governed by, and subject to the terms, provisions and conditions
of, the Indenture and will have the same rights and benefits as the Notes issued on the
Issue Date. Interest (including special interest, if any) to be paid by the Company in the
form of Additional Notes will be mailed to the Holders at their addresses set forth in the
register of Holders. If a Holder has given wire instructions to the Company, the Company
will pay all required cash payments of principal, interest (including special interest, if
any) and premium on that Holder’s Notes in accordance with those instructions. All other
payments on the Notes will be made at the office or agency of the Company maintained for
such purpose in Chicago, Illinois, or, at the option of the Company, required cash payments
of interest (including special interest, if any) may be made by check mailed to the Holders
at their addresses set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds to the accounts specified by the Depositary, or its
nominee will be required with respect to required cash payments of principal of and interest
(including special interest, if any) and premium on, all Global Notes. Such cash payments
will 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, LaSalle Bank National Association,
the Trustee under the Indenture, will 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
March 16, 2007 (the “Indenture”), between the Company, the Guarantors and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the TIA. 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. The Notes are unsecured
obligations of the Company. The Company will be entitled to issue Additional Notes pursuant
to Sections 2.02 and 2.13 of the Indenture.
(5) Optional Redemption.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the Company will not
have the option to redeem the Notes prior to March 15, 2009. On or after March 15, 2009 and
prior to maturity, the Company may, at its option, redeem all or a part of the Notes at any
time and from time to time upon not less than 30 nor more than 60 days’ notice, at the
redemption prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest (including special interest, if any) on the Notes redeemed to
the applicable redemption date, if redeemed during the twelve-month period beginning on
March 15 (unless otherwise indicated), of the years indicated below, subject to the rights
of Holders on the relevant record date to receive interest on the relevant interest payment
date:
A1-4
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Year |
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Percentage |
2009 |
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102.000 |
% |
2010 |
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101.000 |
% |
2011 and thereafter |
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100.000 |
% |
Unless the Company defaults in the payment of the redemption price, interest will cease
to accrue on the Notes or portions thereof called for redemption on the applicable
redemption date.
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time
prior to March 15, 2009, the Company may on any one or more occasions redeem up to 35% of
the aggregate principal amount of Notes issued under the Indenture at a redemption price of
100% of the aggregate principal amount, plus a premium equal to the interest rate per annum
on the Notes applicable on the date on which notice of redemption is given, plus accrued and
unpaid interest (including special interest, if any) to the redemption date, subject to the
rights of Holders of Notes on the relevant record date to receive interest due on the
relevant interest payment date, with the Net Proceeds of one or more Equity Offerings;
provided that at least 65% of the aggregate principal amount of Notes originally issued
under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains
outstanding immediately after the occurrence of such redemption and that such redemption
occurs within 60 days of the date of the closing of such Equity Offering.
(6) Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking fund payments with
respect to the Notes.
(7) Repurchase at the Option of Holder.
(a) If there is a Change of Control, each Holder will have the right to require the
Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in
excess thereof) of that Holder’s Notes, pursuant to an offer that the Company will make to
all Holders at a purchase price in cash equal to 101% of the aggregate principal amount,
plus accrued and unpaid interest (including special interest, if any) thereon to the date of
purchase, subject to the rights of Holders on the relevant record date to receive interest
due on the relevant Interest Payment Date. Subject to the exceptions in Section 4.15 of the
Indenture, within thirty days following any Change of Control, the Company will mail a
notice to each Holder with a copy to the Trustee setting forth the procedures governing the
Change of Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary of the Company consummates any Asset
Sales, within 15 days of the periods specified in Section 4.10(a)(3) of the Indenture, after
which the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will
commence an offer to all Holders of Notes and, at the Company’s option, Holders of other
Indebtedness that is pari passu with the Notes containing provisions similar to those set
forth in the Indenture with respect to offers to purchase or redeem at a purchase price of
100% of the aggregate principal amount thereof, plus accrued and unpaid interest (including
special interest, if any) to the Purchase Date with the proceeds of sales of assets (an
“Asset Sale Offer”) pursuant to Section 3.09 of the Indenture to purchase the maximum
principal amount of Notes (including any Additional Notes) and such other pari passu
Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in
an amount equal to 100% of the principal amount
A1-5
thereof plus accrued and unpaid interest (including special interest, if any) thereon
to the date of purchase, in accordance with the procedures set forth in the Indenture. To
the extent that the aggregate amount of Notes (including any Additional Notes) and other
pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency for any
purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of
Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu
Indebtedness to be purchased on a pro rata basis.
(c) Holders of Notes that are the subject of an offer to purchase will receive a Change
of Control Offer or an Asset Sale Offer from the Company prior to any related purchase date
and may elect to have such Notes purchased by completing the form entitled “Option of Holder
to Elect Purchase” attached to the Notes.
(8) Notice of Redemption. Notice of redemption will 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 larger than $2,000 may be
redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the
Notes held by a Holder are to be redeemed. Notices of redemption may not be conditional.
(9) Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $2,000 or integral multiples of $1,000 in excess thereof
(except that Additional Notes issued in payment of interest and special interest, if any,
may be purchased in other denominations). 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.
(10) Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.
(11) Amendment, Supplement and Waiver. Subject to certain exceptions set
forth in Section 9.02 of the Indenture, the Indenture, the Notes and the note guarantees may
be amended or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes including Additional Notes, if any,
voting as a single class, and any existing Default or Event or Default or compliance with
any provision of the Indenture or the Notes or the note guarantees may be waived with the
consent of the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes including Additional Notes, if any, voting as a single class. Without the
consent of any Holder of a Note, the Indenture or the Notes or the note guarantees may be
amended or supplemented to cure any ambiguity, omission, defect or inconsistency; to provide
for the assumption by a successor corporation of the obligations of the Company under the
Indenture; 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 Code, or in a manner such that the uncertificated Notes
are described in Section 163(f)(2)(B) of the Code; to add Guarantees with respect to the
Notes, to secure the Notes, to add to the covenants of the Company for the benefit
A1-6
of the Holders or to surrender any right or power conferred upon the Company; to make
any change that does not adversely affect the rights of any Holder; to comply with any
requirement of the SEC in connection with the qualification of the Indenture under the TIA;
or to conform the text of the Indenture, the note guarantees or the Notes to any provision
of the Description of notes to the extent that such provision in the Description of notes
was intended to be a verbatim recitation of a provision of the Indenture, the note
guarantees or the Notes.
(12) Defaults and Remedies. Events of Default include: (i) a default in any
payment of interest (including special interest, if any) on or with respect to any Note when
due, continued for 30 days; (ii) a default in the payment of principal of, or premium, if
any, on any Note when due at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration or otherwise; (iii) the failure by the Company or any of its
Restricted Subsidiaries to comply with its obligations under Articles 5 of the Indenture;
(iv) the failure by the Company or any of its Restricted Subsidiaries to comply with its
other agreements contained in the Notes or the Indenture for 60 days after written notice
from the Trustee or the Holders of at least 25% in principal amount of the outstanding
Notes; (v) the failure by the Company or any Significant Subsidiary to pay any Indebtedness
within any applicable grace period after final maturity or the acceleration of any such
Indebtedness by the Holders thereof because of a default if the total amount of such
Indebtedness unpaid or accelerated exceeds $25.0 million; (vi) certain events of bankruptcy,
insolvency or reorganization with respect to the Company or any of its Significant
Subsidiaries specified in the Indenture; (vii) the rendering of any judgment or decree for
the payment of money in an amount, net of any insurance or indemnity payments actually
received in respect thereof prior to or within 90 days from the entry thereof, or to be
received in respect thereof in the event any appeal thereof shall be unsuccessful, in excess
of $25.0 million against the Company or a Significant Subsidiary that is not discharged,
bonded or insured by a third Person if either an enforcement proceeding thereon is
commenced, or such judgment or decree remains outstanding for a period of 90 days and is not
discharged, waived or stayed; or (viii) the failure of any note guarantees of the Notes by a
Guarantor that is a Significant Subsidiary to be in full force, except as contemplated by
the terms thereof or of the Indenture, or the denial in writing by any such Guarantor of its
obligations under the Indenture or any such Guarantee if such Default continues for 10 days.
If any Event of Default occurs and is continuing, the Trustee, by notice to the Company, or
the Holders of at least a majority in aggregate principal amount of the then outstanding
Notes, by notice to the Company and the Trustee, may declare all the Notes to be due and
payable immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy, insolvency or reorganization set forth in the
Indenture, all outstanding Notes will 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. Subject to certain limitations set forth in the Indenture, Holders of at
least a majority in aggregate 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 of the
Notes notice of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest (including special interest, if
any) or premium) if it determines that withholding notice is in their interest. The Holders
of at least a majority in aggregate principal amount of the then outstanding Notes by notice
to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or
waive any existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest (including
special interest, if any) or premium on, or the principal of, the Notes. The Company is
required to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required, upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or Event of Default,
in each case as provided in the Indenture.
A1-7
(13) 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.
(14) No Recourse Against Others. No director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, will have any liability for any
obligations of the Company or any Guarantor under the Notes, the Indenture, the note
guarantees 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.
The waiver may not be effective to waive liabilities under the federal securities laws.
(15) Authentication. This Note will not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
(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 Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all
the rights set forth in the Registration Rights Agreement dated as of March 16, 2007, among
the Company, the Guarantors and the other parties named on the signature pages thereof or,
in the case of Additional Notes, Holders of Restricted Global Notes and Restricted
Definitive Notes will have the rights set forth in one or more registration rights
agreements, if any, among the Company, and the other parties thereto, relating to rights
given by the Company to the purchasers of any Additional Notes (collectively, the
“Registration Rights Agreement”).
(18) CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes, and the Trustee may 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.
(19) THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF
NEW YORK, INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE
NEW YORK OBLIGATIONS LAW.
The Company will 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:
General Nutrition Centers, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Legal Officer
A1-8
Assignment Form
To assign this Note, fill in the form below:
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(I) or (we) assign and transfer this Note to: |
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(Insert assignee’s legal name) |
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
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*:
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* |
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee). |
A1-9
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.15 of the Indenture, check the appropriate box below:
¬ Section 4.10 ¬ Section 4.15
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 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)
Tax
Identification No.:
Signature Guarantee*:
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* |
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee). |
A1-10
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:
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Amount of |
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Principal Amount |
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decrease in |
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increase in |
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of this Global Note |
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Signature of |
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Principal Amount |
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Principal Amount |
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following such |
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authorized officer |
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of |
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of |
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decrease |
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of Trustee or |
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Date of Exchange |
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this Global Note |
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this Global Note |
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(or increase) |
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Custodian |
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This schedule should be included only if the Note is issued in global form. |
A1-11
EXHIBIT A2
[Face of Regulation S Temporary Global Note]
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. GENERAL NUTRITION CENTERS, INC., (THE “COMPANY”)
AGREES TO PROVIDE PROMPTLY TO HOLDERS OF NOTES, UPON WRITTEN REQUEST, THE ISSUE PRICE, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY, WITH RESPECT TO THE NOTES. ANY SUCH
WRITTEN REQUEST SHOULD BE SENT TO THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT THE FOLLOWING
ADDRESS: GENERAL NUTRITION CENTERS, INC., 000 XXXXX XXXXXX, XXXXXXXXXX, XXXXXXXXXXXX 00000.
CUSIP/CINS
Senior Floating Rate Toggle Notes due 2014
GENERAL NUTRITION CENTERS, INC.
promises to pay to Cede & Co., or registered assigns,
the
principal sum of DOLLARS on March 15, 2014.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
Dated: March 16, 2007
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GENERAL NUTRITION CENTERS, INC.
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By: |
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Name: |
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Title: |
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This is one of the Notes referred to
in the within-mentioned Indenture:
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LASALLE BANK NATIONAL ASSOCIATION,
as Trustee |
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By: |
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Authorized Signatory
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A2-1
[Back of Regulation S Temporary Global Note]
Senior Floating Rate Toggle Notes due 2014
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST HEREON. DURING THE PERIOD WHICH SUCH HOLDER HOLDS
THIS NOTE NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM ACCRUING ON THE NOTE.
UNTIL 40 DAYS AFTER THE COMMENCEMENT OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE
UNITED STATES BY A DEALER (AS DEFINED IN THE U.S. SECURITIES ACT) MAY VIOLATE THE REGISTRATION
REQUIREMENTS OF THE U.S. SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE
WITH RULE 144A UNDER THE U.S. SECURITIES ACT.
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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF GENERAL NUTRITION
CENTERS, INC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A)(1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(2) IN AN OFFSHORE
A2-2
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE), (4) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT, IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, (5) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (BASED UPON AN OPINION OF COUNSEL IF GENERAL NUTRITION CENTERS,
INC. SO REQUESTS) OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (B) IN ACCORDANCE WITH ALL APPLICABLE BLUE SKY LAWS OF THE STATES OF THE UNITED STATES.
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.
(1) Interest. General Nutrition Centers, Inc., a Delaware corporation (the
“Company”), may, at its option, elect to pay interest on the notes: (1) entirely in cash
(“Cash Interest”); (2) entirely by increasing the principal amount of the outstanding notes
or by issuing PIK Notes having an aggregate principal amount equal to the amount of interest
then due and owing (“PIK Interest”); or (3) on 50% of the outstanding principal amount of
the notes in cash and on 50% of the outstanding principal amount of the notes by increasing
the principal amount of the outstanding notes or by issuing PIK Notes having an aggregate
principal amount equal to the amount of interest being paid in the form of PIK Interest
(“Partial PIK Interest"). The Company shall pay special interest, if any, payable pursuant
to the Registration Rights Agreement referred to below. The Company must elect the form of
interest payment with respect to each interest period by delivering a notice to the Trustee
at least five business days prior to the beginning of each interest period. The Trustee
shall promptly deliver a corresponding notice to the Holders. In the absence of such an
election, interest on the notes will be payable entirely in cash. Interest on the notes
will accrue at a rate equal to the Applicable LIBOR Rate plus 450 basis points. PIK Interest
on the notes will accrue at a rate equal to the Applicable LIBOR Rate plus 525 basis points
and be payable: (1) with respect to notes represented by one or more Global Notes registered
in the name of, or held by, DTC (or any successor depositary) or its nominee on the relevant
record date, by increasing the principal amount of the outstanding Global Notes, effective
as of the applicable interest payment date, by an amount equal to the amount of PIK Interest
for the applicable interest period (rounded up to the nearest $1,000); and (2) with respect
to notes represented by certificated notes, by issuing PIK Notes in certificated form, dated
as of the applicable interest payment date, in an aggregate principal amount equal to the
amount of PIK Interest for the applicable interest period (rounded up to the nearest whole
dollar). The Trustee will, at the request of the Company, authenticate and deliver such PIK
Notes in certificated form for original issuance to the holders of certificated notes on the
relevant record date, as shown by the records of the register of holders. In the event that
the Company elects to pay Partial PIK Interest for any interest period, each Holder of Notes
will be entitled to receive Cash Interest in respect of 50% of the principal amount of the
Notes held by such Holder on the relevant record date and PIK Interest in respect of 50% of
the principal amount of the Notes held by such Holder on the relevant record date. The
Company will pay interest (including special interest, if any) semi-annually in arrears on
March 15 and September 15 of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no interest has been
paid, from the date of original issuance; 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
A2-3
such next succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be September 15, 2007. The Company will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at the rate that is then in effect on the Notes
to the extent lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest (including special
interest, if any) (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
Until this Regulation S Temporary Global Note is exchanged for one or more Regulation S
Permanent Global Notes, the Holder hereof shall not be entitled to receive payments of
interest (including special interest, if any) hereon; until so exchanged in full, this
Regulation S Temporary Global Note shall in all other respects be entitled to the same
benefits as other Notes under the Indenture.
(2) Method of Payment. The Company will pay interest (including special
interest, if any) on the Notes (except defaulted interest) to the Persons who are registered
Holders of Notes at the close of business on the March 1 or September 1 next preceding the
applicable 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 2.12 of the Indenture
with respect to defaulted interest. PIK Interest will be payable by increasing the
principal amount of this global Note by an amount equal to the amount of PIK Interest for
the applicable interest period (rounded up to the nearest $1,000). Following an increase in
the principal amount of the outstanding global Notes as a result of a PIK Payment, this
global Note shall bear interest on such increased principal amount from and after the date
of such PIK Payment, and shall be governed by, and subject to the terms, provisions and
conditions of, the Indenture and will have the same rights and benefits as the Notes issued
on the Issue Date. Interest (including special interest, if any) to be paid by the Company
in the form of Additional Notes will be mailed to the Holders at their addresses set forth
in the register of Holders. If a Holder has given wire instructions to the Company, the
Company will pay all required cash payments of principal, interest (including special
interest, if any) and premium on that Holder’s Notes in accordance with those instructions.
All other payments on the Notes will be made at the office or agency of the Company
maintained for such purpose in Chicago, Illinois, or, at the option of the Company, required
cash payments of interest (including special interest, if any) may be made by check mailed
to the Holders at their addresses set forth in the register of Holders; provided that
payment by wire transfer of immediately available funds to the accounts specified by the
Depositary, or its nominee will be required with respect to required cash payments of
principal of and interest (including special interest, if any) and premium on, all Global
Notes. Such cash payments will 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, LaSalle Bank National Association,
the Trustee under the Indenture, will 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
March 16, 2007 (the “Indenture”) between the Company, the Guarantors and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the TIA. 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
A2-4
express provisions of the Indenture, the provisions of the Indenture shall govern and
be controlling. The Notes are unsecured obligations of the Company. The Company will be
entitled to issue Additional Notes pursuant to Sections 2.02 and 2.13 of the Indenture.
(5) Optional Redemption.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the Company will not have
the option to redeem the Notes prior to March 15, 2009. On or after March 15, 2009 and prior to
maturity, the Company may, at its option, redeem all or a part of the Notes at any time and from
time to time upon not less than 30 nor more than 60 days’ notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and unpaid interest
(including special interest, if any) on the Notes redeemed to the applicable redemption date, if
redeemed during the twelve-month period beginning on March 15 (unless otherwise indicated), of
the years indicated below, subject to the rights of Holders on the relevant record date to
receive interest on the relevant Interest Payment Date:
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Year |
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Percentage |
2009 |
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102.000 |
% |
2010 |
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101.000 |
% |
2011 and thereafter |
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100.000 |
% |
Unless the Company defaults in the payment of the redemption price, interest will cease to
accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time
prior to March 15, 2009, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of Notes issued under the Indenture at a redemption price of 100% of
the aggregate principal amount, plus a premium equal to the interest rate per annum on the Notes
applicable on the date on which notice of redemption is given, plus accrued and unpaid interest
(including special interest, if any) to the redemption date, subject to the rights of Holders of
Notes on the relevant record date to receive interest due on the relevant interest payment date,
with the Net Proceeds of one or more Equity Offerings; provided that at least 65% of the
aggregate principal amount of Notes originally issued under the Indenture (excluding Notes held
by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of
such redemption and that such redemption occurs within 60 days of the date of the closing of
such Equity Offering.
(6) Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking fund payments with respect
to the Notes.
(7) Repurchase at the Option of Holder.
(a) If there is a Change of Control, each Holder will have the right to require the
Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in
excess thereof) of that Holder’s Notes, pursuant to an offer that the Company will make to
all Holders at a purchase price in cash equal to 101% of the aggregate principal amount,
plus accrued and unpaid interest (including special interest, if any) thereon to the date of
purchase, subject to the rights of Holders on the relevant record date to receive interest
due on the relevant Interest Payment Date. Subject to the exceptions in Section 4.15 of the
Indenture, within thirty days following any Change of Control, the Company will mail a
notice to each Holder with a copy to
A2-5
the Trustee setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
(b) If the Company or a Restricted Subsidiary of the Company consummates any Asset
Sales, within 15 days of the periods specified in Section 4.10(a)(3) of the Indenture, after
which the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will
commence an offer to all Holders of Notes and, at the Company’s option, Holders of other
Indebtedness that is pari passu with the Notes containing provisions similar to those set
forth in the Indenture with respect to offers to purchase or redeem at a purchase price of
100% of the aggregate principal amount thereof, plus accrued and unpaid interest (including
special interest, if any) to the Purchase Date with the proceeds of sales of assets (an
“Asset Sale Offer”) pursuant to Section 3.09 of the Indenture to purchase the maximum
principal amount of Notes (including any Additional Notes) and such other pari passu
Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in
an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest
(including special interest, if any) thereon to the date of purchase, in accordance with the
procedures set forth in the Indenture. To the extent that the aggregate amount of Notes
(including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted
Subsidiary) may use such deficiency for any purpose not otherwise prohibited by the
Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis.
(c) Holders of Notes that are the subject of an offer to purchase will receive a Change
of Control Offer or an Asset Sale Offer from the Company prior to any related purchase date
and may elect to have such Notes purchased by completing the form entitled “Option of Holder
to Elect Purchase” attached to the Notes.
(8) Notice of Redemption. Notice of redemption will 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 larger than $2,000 may be
redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the
Notes held by a Holder are to be redeemed. Notices of redemption may not be conditional.
(9) Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $2,000 or integral multiples of $1,000 in excess thereof
(except that Additional Notes issued in payment of interest and special interest, if any,
may be purchased in other denominations). 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.
This Regulation S Temporary Global Note is exchangeable in whole or in part for one or
more Global Notes only (i) on or after the termination of the 40-day distribution compliance
period (as defined in Regulation S) and (ii) upon presentation of certificates (accompanied
by an Opinion of Counsel, if applicable) required by Article 2 of the Indenture. Upon
exchange of this
A2-6
Regulation S Temporary Global Note for one or more Global Notes, the Trustee shall
cancel this Regulation S Temporary Global Note.
(10) Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.
(11) Amendment, Supplement and Waiver. Subject to certain exceptions set
forth in Section 9.02 of the Indenture, the Indenture, the Notes and the note guarantees may
be amended or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes including Additional Notes, if any,
voting as a single class, and any existing Default or Event or Default or compliance with
any provision of the Indenture or the Notes or the note guarantees may be waived with the
consent of the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes including Additional Notes, if any, voting as a single class. Without the
consent of any Holder of a Note, the Indenture or the Notes or the note guarantees may be
amended or supplemented to cure any ambiguity, omission, defect or inconsistency; to provide
for the assumption by a successor corporation of the obligations of the Company under the
Indenture; 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 Code, or in a manner such that the uncertificated Notes
are described in Section 163(f)(2)(B) of the Code; to add Guarantees with respect to the
Notes, to secure the Notes, to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power conferred upon the Company; to make any change
that does not adversely affect the rights of any Holder; to comply with any requirement of
the SEC in connection with the qualification of the Indenture under the TIA; or to conform
the text of the Indenture, the note guarantees or the Notes to any provision of the
Description of notes to the extent that such provision in the Description of notes was
intended to be a verbatim recitation of a provision of the Indenture, the note guarantees or
the Notes.
(12) Defaults and Remedies. Events of Default include: (i) a default in any
payment of interest (including special interest, if any) on or with respect to any Note when
due, continued for 30 days; (ii) a default in the payment of principal of, or premium, if
any, on any Note when due at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration or otherwise; (iii) the failure by the Company or any of its
Restricted Subsidiaries to comply with its obligations under Articles 5 of the Indenture;
(iv) the failure by the Company or any of its Restricted Subsidiaries to comply with its
other agreements contained in the Notes or the Indenture for 60 days after written notice
from the Trustee or the Holders of at least 25% in principal amount of the outstanding
Notes; (v) the failure by the Company or any Significant Subsidiary to pay any Indebtedness
within any applicable grace period after final maturity or the acceleration of any such
Indebtedness by the Holders thereof because of a default if the total amount of such
Indebtedness unpaid or accelerated exceeds $25.0 million; (vi) certain events of bankruptcy,
insolvency or reorganization with respect to the Company or any of its Significant
Subsidiaries specified in the Indenture; (vii) the rendering of any judgment or decree for
the payment of money in an amount, net of any insurance or indemnity payments actually
received in respect thereof prior to or within 90 days from the entry thereof, or to be
received in respect thereof in the event any appeal thereof shall be unsuccessful, in excess
of $25.0 million against the Company or a Significant Subsidiary that is not discharged,
bonded or insured by a third Person if either an enforcement proceeding thereon is
commenced, or such judgment or decree remains outstanding for a period of 90 days and is not
discharged, waived or stayed; or (viii) the failure of any note guarantees of the Notes by a
Guarantor that is a Significant Subsidiary to be in full force, except as contemplated by
the terms thereof or of the Indenture, or the denial in writing by any such Guarantor of its
obligations under the Indenture or any such Guarantee if such
A2-7
Default continues for 10 days. If any Event of Default occurs and is continuing, the
Trustee, by notice to the Company, or the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes, by notice to the Company and the Trustee,
may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events of bankruptcy, insolvency or
reorganization set forth in the Indenture, all outstanding Notes will 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. Subject to certain limitations set forth in the
Indenture, Holders of at least a majority in aggregate 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 of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or interest
(including special interest, if any) or premium) if it determines that withholding notice is
in their interest. The Holders of at least a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the
Notes, rescind an acceleration or waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default in the
payment of interest (including special interest, if any) or premium on, or the principal of,
the Notes. The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required, upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default, in each case as provided in the Indenture.
(13) 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.
(14) No Recourse Against Others. No director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, will have any liability for any
obligations of the Company or any Guarantor under the Notes, the Indenture, the note
guarantees 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.
The waiver may not be effective to waive liabilities under the federal securities laws.
(15) Authentication. This Note will not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
(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 Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all
the rights set forth in the Registration Rights Agreement dated as of March 16, 2007, among
the Company, the Guarantors and the other parties named on the signature pages thereof or,
in the case of Additional Notes, Holders of Restricted Global Notes and Restricted
Definitive Notes will have the rights set forth in one or more registration rights
agreements, if any, among the Company, and
A2-8
the other parties thereto, relating to rights given by the Company to the purchasers of
any Additional Notes (collectively, the “Registration Rights Agreement”).
(18) CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes, and the Trustee may 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.
(19) THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF
NEW YORK, INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE
NEW YORK OBLIGATIONS LAW.
The Company will 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:
General Nutrition Centers, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Legal Officer
A2-9
Assignment Form
To assign this Note, fill in the form below:
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(I) or (we) assign and transfer this Note to: |
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(Insert assignee’s legal name) |
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(Insert assignee’s soc. sec. or tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
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and
irrevocably appoint
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*:
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* |
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee). |
A2-10
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.15 of the Indenture, check the appropriate box below:
¬ Section 4.10 ¬ Section 4.15
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:
$
Date:
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Your Signature: |
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(Sign exactly as your name appears on the face of this Note) |
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Tax Identification No.:
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Signature Guarantee*:
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* |
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee). |
A2-11
Schedule of Exchanges of Interests in the Regulation S Temporary Global Note
The following exchanges of a part of this Regulation S Temporary Global Note for an interest
in another Global Note, or exchanges of a part of another other Restricted Global Note for an
interest in this Regulation S Temporary Global Note, have been made:
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Principal Amount |
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Amount of |
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Amount of |
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of this |
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decrease in |
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increase in |
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Global Note |
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Signature of |
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Principal Amount |
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Principal Amount |
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following such |
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authorized officer |
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of this |
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of this |
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decrease |
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of Trustee or |
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Date of Exchange |
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Global Note |
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Global Note |
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(or increase) |
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Custodian |
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A2-12
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
General Nutrition Centers, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Re: Senior Floating Rate Toggle Notes due 2014
Reference is hereby made to the Indenture, dated as of March 16, 2007 (the “Indenture”),
between General Nutrition Centers, Inc., as issuer (the “Company”), the Guarantors party thereto
and LaSalle 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. o Check if Transferee will take delivery of a beneficial interest in the 144A
Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the 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 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 144A Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.
2. o Check if Transferee will take delivery of a beneficial interest in the
Regulation S Temporary Global Note, the Regulation S Permanent Global Note or a Restricted
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, (iii) the transaction is not part of a
plan or scheme to evade the registration requirements of the Securities Act and (iv) if the
B-1
proposed transfer is being made prior to the expiration of the Restricted Period, the transfer
is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). 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 Regulation S
Permanent Global Note, the Regulation S Temporary Global Note and/or the Restricted Definitive Note
and in the Indenture and the Securities Act.
3. o Check and complete if Transferee will take delivery of a beneficial interest
in the IAI Global Note or a Restricted 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) o such Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;
or
(b) o such Transfer is being effected to the Company or a subsidiary thereof;
or
(c) o 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) o 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, Rule 903 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) 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 IAI Global Note and/or the Restricted
Definitive Notes and in the Indenture and the Securities Act.
4. o Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) o 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
B-2
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.
(b) o 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) o 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.
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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) o a beneficial interest in the:
(i) o 144A Global Note (CUSIP ), or
(ii) o Regulation S Permanent Global Note (CUSIP ), or
(iii) o Regulation S Temporary Global Note (CUSIP ); or
(iv) o IAI Global Note (CUSIP ); or
(b) o a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) o a beneficial interest in the:
(i) o 144A Global Note (CUSIP ), or
(ii) o Regulation S Permanent Global Note (CUSIP ), or
(iii) o Regulation S Temporary Global Note (CUSIP ); or
(iv) o IAI Global Note (CUSIP ); or
(v) o Unrestricted Global Note (CUSIP ); or
(b) o a Restricted Definitive Note; or
(c) o an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT
C
FORM OF CERTIFICATE OF EXCHANGE
General Nutrition Centers, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Re: Senior Floating Rate Toggle Notes due 2014
(CUSIP )
Reference is hereby made to the Indenture, dated as of March 16, 2007 (the “Indenture”),
between General Nutrition Centers, Inc., as issuer (the “Company”), the Guarantors party thereto
and LaSalle 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 herein, 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) o 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 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) o 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 compliance
with any applicable blue sky securities laws of any state of the United States.
C-1
(c) o 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) o 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) o 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) o 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] o 144A Global Note, o Regulation S Global
Note, oIAI 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.
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Dated:
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
General Nutrition Centers, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Re: Senior Floating Rate Toggle Notes due 2014
Reference is hereby made to the Indenture, dated as of March 16, 2007 (the “Indenture”),
between General Nutrition Centers, Inc., as issuer (the “Company”), and LaSalle 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) o a beneficial interest in a Global Note, or
(b) o 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 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 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
EXHIBIT D
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.
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Dated:
D-2
EXHIBIT E
[FORM OF NOTATION OF GUARANTEE]
For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture dated as of March 16, 2007 (the
“Indenture”) among General Nutrition Centers, Inc., (the “Company”), the Guarantors party thereto
and LaSalle Bank National Association, as trustee (the “Trustee”), (a) the due and punctual payment
of the principal of, premium and special interest, if any, and interest on, the Notes, whether at
maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on
overdue principal of and interest on the Notes, if any, if lawful, and the due and punctual
performance of all other obligations of the Company to the Holders or the Trustee all in accordance
with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the
Trustee pursuant to the 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 the Note
Guarantee. Each Holder of a Note, by accepting the same, (a) agrees to and shall be bound by such
provisions (b) authorizes and directs the Trustee, on behalf of such Holder, to take such action as
may be necessary or appropriate to effectuate the subordination as provided in the Indenture and
(c) appoints the Trustee attorney-in-fact of such Holder for such purpose; provided, however, that
the Indebtedness evidenced by this Note Guarantee shall cease to be so subordinated and subject in
right of payment upon any defeasance of this Note in accordance with the provisions of the
Indenture.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
Capitalized terms used but not defined herein have the meanings given to them in the
Indenture.
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[Name of Guarantor(s)]
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E-1
EXHIBIT F
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
Supplemental Indenture (this “Supplemental Indenture”), dated as of ,
200 ,
among (the “Guaranteeing Subsidiary”), a subsidiary of General Nutrition
Centers, Inc. (or its permitted successor), a [Delaware] corporation (the “Company”), the Company,
the other Guarantors (as defined in the Indenture referred to herein) and , as
trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of March 16, 2007 providing for the issuance of Senior Floating Rate Toggle
Notes due 2014 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee
and in the Indenture including but not limited to Article 10 thereof.
3. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have
any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of the 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.
4.
NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE 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.
F-1
EXHIBIT F
5. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
6. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
7. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.
F-2
EXHIBIT F
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
Dated: , 20
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[Guaranteeing Subsidiary]
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[Company]
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[Existing Guarantors]
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[Trustee],
as Trustee
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Authorized Signatory |
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F-3