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Exhibit 4.1
EXECUTION COPY
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Nebco Xxxxx Holding Company
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$100,387,000
12 3/8% SENIOR DISCOUNT NOTES DUE 2007
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INDENTURE
DATED AS OF JULY 11, 1997
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State Street Bank and Trust Company
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1) .................................................. 7.10
(a)(2) .................................................. 7.10
(a)(3) .................................................. N.A.
(a)(4) .................................................. N.A.
(a)(5) .................................................. 7.10
(b) ..................................................... 7.03; 7.10
(c) ..................................................... N.A.
311 (a) ..................................................... 7.11
(b) ..................................................... 7.11
(c) ..................................................... N.A.
312 (a) ..................................................... 2.05
(b) ..................................................... 10.03
(c) ..................................................... 10.03
313 (a) ..................................................... 7.06
(b)(1) .................................................. 7.06
(b)(2) .................................................. 7.06; 7.07
(c) ..................................................... 7.06;10.02
(d) ..................................................... 7.06
314 (a) ..................................................... 4.03;10.05
(b) ..................................................... N.A.
(c)(1) .................................................. 10.04
(c)(2) .................................................. 10.04
(c)(3) .................................................. N.A.
(d) ..................................................... N.A.
(e) ..................................................... 10.05
(f) ..................................................... N.A.
315 (a) ..................................................... 7.01
(b) ..................................................... 7.05,10.02
(c) ..................................................... 7.01
(d) ..................................................... 7.01
(e) ..................................................... 6.11
316 (a)(last sentence) ...................................... 2.09
(a)(1)(A) ............................................... 6.05
(a)(1)(B) ............................................... 6.04
(a)(2) .................................................. 2.13
(b) ..................................................... 6.07
(c) ..................................................... N.A.
317 (a)(1) .................................................. 6.08
(a)(2) .................................................. 6.09
(b) ..................................................... 2.04
318 (a) ..................................................... 10.01
(b) ..................................................... N.A.
(c) ..................................................... 10.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions ................................................. 1
Section 1.02. Other Definitions ........................................... 14
Section 1.03. Incorporation by Reference of Trust Indenture Act ........... 15
Section 1.04. Rules of Construction ....................................... 15
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating ............................................. 16
Section 2.02. Execution and Authentication ................................ 17
Section 2.03. Registrar and Paying Agent .................................. 18
Section 2.04. Paying Agent to Hold Money in Trust ......................... 18
Section 2.05. Holder Lists ................................................ 18
Section 2.06. Transfer and Exchange ....................................... 19
Section 2.07. Replacement Notes ........................................... 26
Section 2.08. Outstanding Notes ........................................... 26
Section 2.09. Treasury Notes .............................................. 27
Section 2.10. Temporary Notes ............................................. 27
Section 2.11. Cancellation ................................................ 27
Section 2.12. Defaulted Interest .......................................... 27
Section 2.13. Record Date ................................................. 28
Section 2.14. Computation of Interest ..................................... 28
Section 2.15. CUSIP Number ................................................ 28
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee .......................................... 28
Section 3.02. Selection of Notes to be Redeemed or Purchased .............. 29
Section 3.03. Notice of Redemption ........................................ 29
Section 3.04. Effect of Notice of Redemption .............................. 30
Section 3.05. Deposit of Redemption or Purchase Price ..................... 30
Section 3.06. Notes Redeemed in Part ...................................... 30
Section 3.07. Optional Redemption ......................................... 30
Section 3.08. Mandatory Redemption ........................................ 31
Section 3.09. Repurchase Offers ........................................... 31
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes ............................................ 33
Section 4.02. Maintenance of Office or Agency ............................. 33
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Section 4.03. Commission Reports .......................................... 34
Section 4.04. Compliance Certificate ...................................... 34
Section 4.05. Taxes ....................................................... 35
Section 4.06. Stay, Extension and Usury Laws .............................. 35
Section 4.07. Restricted Payments ......................................... 35
Section 4.08. Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries ..................................... 37
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock .. 38
Section 4.10. Assets Sales ................................................ 41
Section 4.11. Transactions With Affiliates ................................ 41
Section 4.12. Liens ....................................................... 42
Section 4.13. Sale and Leaseback Transactions ............................. 42
Section 4.14. Offer to Purchase Upon Change of Control .................... 43
Section 4.15. Corporate Existence ......................................... 43
Section 4.16. Limitation on Issuances of Capital Stock of Wholly
Owned Restricted Subsidiaries ............................... 44
Section 4.17. Business Activities ......................................... 44
Section 4.18. Payment for Consents ........................................ 44
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation of Sale of Assets ..................... 44
Section 5.02. Successor Corporation Substituted ........................... 45
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default ........................................... 45
Section 6.02. Acceleration ................................................ 47
Section 6.03. Other Remedies .............................................. 47
Section 6.04. Waiver of Past Defaults ..................................... 48
Section 6.05. Control by Majority ......................................... 48
Section 6.06. Limitation on Suits ......................................... 48
Section 6.07. Rights of Holders of Notes to Receive Payment ............... 49
Section 6.08. Collection Suit by Trustee .................................. 49
Section 6.09. Trustee May File Proofs of Claim ............................ 49
Section 6.10. Priorities .................................................. 49
Section 6.11. Undertaking for Costs ....................................... 50
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee ........................................... 50
Section 7.02. Rights of Trustee ........................................... 51
Section 7.03. Individual Rights of Trustee ................................ 52
Section 7.04. Trustee's Disclaimer ........................................ 52
Section 7.05. Notice of Defaults .......................................... 52
Section 7.06. Reports by Trustee to Holders of the Notes .................. 52
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Section 7.07. Compensation and Indemnity .................................. 53
Section 7.08. Replacement of Trustee ...................................... 53
Section 7.09. Successor Trustee by Merger, etc ............................ 54
Section 7.10. Eligibility; Disqualification ............................... 54
Section 7.11. Preferential Collection of Claims Against NEHC .............. 55
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance .................................................. 55
Section 8.02. Legal Defeasance and Discharge .............................. 55
Section 8.03. Covenant Defeasance ......................................... 55
Section 8.04. Conditions to Legal or Covenant Defeasance .................. 56
Section 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions. .............. 57
Section 8.06. Repayment to NEHC ........................................... 57
Section 8.07. Reinstatement ............................................... 58
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of the Notes ..................... 58
Section 9.02. With Consent of Holders of Notes ............................ 59
Section 9.03. Compliance with Trust Indenture Act ......................... 60
Section 9.04. Revocation and Effect of Consents ........................... 60
Section 9.05. Notation on or Exchange of Notes ............................ 60
Section 9.06. Trustee to Sign Amendments, etc ............................. 60
ARTICLE 10
AMENDMENT, SUPPLEMENT AND WAIVER
Section 10.01. Trust Indenture Act Controls ................................ 61
Section 10.02. Notices ..................................................... 61
Section 10.03. Communication by Holders of Notes with Other
Holders of Notes ............................................ 62
Section 10.04. Certificate and Opinion as to Conditions Precedent .......... 62
Section 10.05. Statements Required in Certificate or Opinion ............... 62
Section 10.06. Rules by Trustee and Agents ................................. 63
Section 10.07. No Personal Liability of Directors, Officers,
Employees and Stockholders .................................. 63
Section 10.08. Governing Law ............................................... 63
Section 10.09. No Adverse Interpretation of Other Agreements ............... 63
Section 10.10. Successors .................................................. 63
Section 10.11. Severability ................................................ 63
Section 10.12. Counterpart Originals ....................................... 63
Section 10.13. Table of Contents, Headings, etc ............................ 64
ARTICLE 1
DEFINITIONS AND INCORPORATION
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BY REFERENCE
Section 1.01. Definitions ................................................. 1
Section 1.02. Other Definitions ........................................... 14
Section 1.03. Incorporation by Reference of Trust Indenture Act ........... 15
Section 1.04. Rules of Construction ....................................... 15
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating ............................................. 16
Section 2.02. Execution and Authentication ................................ 17
Section 2.03. Registrar and Paying Agent .................................. 18
Section 2.04. Paying Agent to Hold Money in Trust ......................... 18
Section 2.05. Holder Lists ................................................ 18
Section 2.06. Transfer and Exchange ....................................... 19
Section 2.07. Replacement Notes ........................................... 26
Section 2.08. Outstanding Notes ........................................... 27
Section 2.09. Treasury Notes .............................................. 27
Section 2.10. Temporary Notes ............................................. 27
Section 2.11. Cancellation ................................................ 27
Section 2.12. Defaulted Interest .......................................... 28
Section 2.13. Record Date ................................................. 28
Section 2.14. Computation of Interest ..................................... 28
Section 2.15. CUSIP Number ................................................ 28
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee .......................................... 28
Section 3.02. Selection of Notes to be Redeemed or Purchased .............. 29
Section 3.03. Notice of Redemption ........................................ 29
Section 3.04. Effect of Notice of Redemption .............................. 30
Section 3.05. Deposit of Redemption or Purchase Price ..................... 30
Section 3.06. Notes Redeemed in Part ...................................... 30
Section 3.07. Optional Redemption ......................................... 31
Section 3.08. Mandatory Redemption ........................................ 31
Section 3.09. Repurchase Offers ........................................... 31
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes ............................................ 33
Section 4.02. Maintenance of Office or Agency ............................. 33
Section 4.03. Commission Reports .......................................... 34
Section 4.04. Compliance Certificate ...................................... 34
Section 4.05. Taxes ....................................................... 35
Section 4.06. Stay, Extension and Usury Laws .............................. 35
Section 4.07. Restricted Payments ......................................... 35
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Section 4.08. Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries ..................................... 38
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred
Stock ....................................................... 38
Section 4.10. Assets Sales ................................................ 41
Section 4.11. Transactions With Affiliates ................................ 41
Section 4.12. Liens ....................................................... 42
Section 4.13. Sale and Leaseback Transactions ............................. 42
Section 4.14. Offer to Purchase Upon Change of Control .................... 43
Section 4.15. Corporate Existence ......................................... 43
Section 4.16. Limitation on Issuances of Capital Stock of Wholly
Owned Restricted Subsidiaries ............................... 44
Section 4.17. Business Activities ......................................... 44
Section 4.18. Payment for Consents ........................................ 44
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation of Sale of Assets ..................... 44
Section 5.02. Successor Corporation Substituted ........................... 45
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default ........................................... 45
Section 6.02. Acceleration ................................................ 47
Section 6.03. Other Remedies .............................................. 47
Section 6.04. Waiver of Past Defaults ..................................... 48
Section 6.05. Control by Majority ......................................... 48
Section 6.06. Limitation on Suits ......................................... 48
Section 6.07. Rights of Holders of Notes to Receive Payment ............... 49
Section 6.08. Collection Suit by Trustee .................................. 49
Section 6.09. Trustee May File Proofs of Claim ............................ 49
Section 6.10. Priorities .................................................. 49
Section 6.11. Undertaking for Costs ....................................... 50
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee ........................................... 50
Section 7.02. Rights of Trustee ........................................... 51
Section 7.03. Individual Rights of Trustee ................................ 52
Section 7.04. Trustee's Disclaimer ........................................ 52
Section 7.05. Notice of Defaults .......................................... 52
Section 7.06. Reports by Trustee to Holders of the Notes .................. 52
Section 7.07. Compensation and Indemnity .................................. 53
Section 7.08. Replacement of Trustee ...................................... 53
Section 7.09. Successor Trustee by Merger, etc ............................ 54
Section 7.10. Eligibility; Disqualification ............................... 54
Section 7.11. Preferential Collection of Claims Against NEHC .............. 55
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ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance .................................................. 55
Section 8.02. Legal Defeasance and Discharge .............................. 55
Section 8.03. Covenant Defeasance ......................................... 55
Section 8.04. Conditions to Legal or Covenant Defeasance .................. 56
Section 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions. .............. 57
Section 8.06. Repayment to NEHC ........................................... 57
Section 8.07. Reinstatement ............................................... 58
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of the Notes ..................... 58
Section 9.02. With Consent of Holders of Notes ............................ 59
Section 9.03. Compliance with Trust Indenture Act ......................... 60
Section 9.04. Revocation and Effect of Consents ........................... 60
Section 9.05. Notation on or Exchange of Notes ............................ 60
Section 9.06. Trustee to Sign Amendments, etc ............................. 60
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls ................................ 61
Section 10.02. Notices ..................................................... 61
Section 10.03. Communication by Holders of Notes with Other
Holders of Notes ............................................ 62
Section 10.04. Certificate and Opinion as to Conditions Precedent .......... 62
Section 10.05. Statements Required in Certificate or Opinion ............... 62
Section 10.06. Rules by Trustee and Agents ................................. 63
Section 10.07. No Personal Liability of Directors, Officers,
Employees and Stockholders .................................. 63
Section 10.08. Governing Law ............................................... 63
Section 10.09. No Adverse Interpretation of Other Agreements ............... 63
Section 10.10. Successors .................................................. 63
Section 10.11. Severability ................................................ 63
Section 10.12. Counterpart Originals ....................................... 63
Section 10.13. Table of Contents, Headings, etc ............................ 64
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EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFEROR
Exhibit C FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
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Indenture, dated as of July 11, 1997, between Nebco Xxxxx Holding Company,
a Delaware corporation ("NEHC") and State Street Bank and Trust Company, as
trustee (the "Trustee").
NEHC and the Trustee agree as follows for the benefit of each other and
for the equal and ratable benefit of the holders of NEHC's 12 3/8% Senior
Discount Notes due 2007 (the "Senior Discount Notes") and the new 12 3/8% Senior
Discount Notes due 2007 (the "New Senior Discount Notes" and, together with the
Senior Discount Notes, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Accreted Value" means, for each $1,000 face amount of Notes, as of any
date of determination prior to July 15, 2002, the sum of (i) $547.88 and (ii)
that portion of the excess of the principal amount of each Note over such
initial offering price which shall have been accreted thereon through such date,
such amount to be so accreted on a daily basis and compounded semi-annually on
each July 15 and January 15 at the rate of 12 3/8% per annum from the date of
issuance of the Notes through the date of determination.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"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 purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or exchange of
beneficial interests in a Global Note, the rules and procedures of the
Depositary that apply to such transfer and exchange.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition of
any assets or rights (including, without limitation, by way of a sale and
leaseback) other than sales of inventory in the ordinary course of business
consistent with past practices and other than a Receivables Transaction
(provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of NEHC and its Restricted Subsidiaries taken as
a whole will be governed by Section 4.14 and/or Article 5 hereof and not by the
provisions of Section 4.10 hereof), and (ii) the issue or sale by NEHC or any of
its Restricted Subsidiaries of Equity Interests of any of NEHC's Restricted
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $3.0 million or (b) for net proceeds in excess of $3.0
million.
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Notwithstanding the foregoing: (i) a transfer of assets by NEHC to a Wholly
Owned Restricted Subsidiary or by a Wholly Owned Restricted Subsidiary to NEHC
or to another Wholly Owned Restricted Subsidiary, (ii) an issuance of Equity
Interests by a Wholly Owned Restricted Subsidiary to NEHC or to another Wholly
Owned Restricted Subsidiary, and (iii) a Restricted Payment that is permitted by
Section 4.07 hereof will not be deemed to be Asset Sales.
"Attributable Debt" in respect of a sale and leaseback transaction means,
at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"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 NEHC or any
authorized committee of such board of directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any lender party to the New Credit
Facility or with any domestic commercial bank having capital and surplus in
excess of $500 million and a Xxxxxxxx Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having the highest rating obtainable from
Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation and in each
case maturing within six months after the date of acquisition and (vi)
securities quoted by the Nasdaq National Market or listed on a United States,
Canadian or Western European national securities exchange.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of NEHC and its Subsidiaries taken as a whole
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to any "person" (as such term is used in Section 13(d)(3) of the Exchange Act)
other than the Principals or their Related Parties (as defined below), (ii) the
adoption of a plan relating to the liquidation or dissolution of NEHC, (iii) the
consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any "person" (as defined above),
other than the Principals and their Related Parties, becomes the "beneficial
owner" (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act, except that a person shall be deemed to have "beneficial ownership" of all
securities that such person has the right to acquire, whether such right is
currently exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 50% of the Voting Stock of NEHC
(measured by voting power rather than number of shares), (iv) the first day on
which a majority of the members of the Board of Directors of NEHC are not
Continuing Directors or (v) NEHC consolidates with, or merges with or into, any
Person or sells, assigns, conveys, transfers, leases or otherwise disposes of
all or substantially all of its assets to any Person, or any Person consolidates
with, or merges with or into, NEHC, in any such event pursuant to a transaction
in which any of the outstanding Voting Stock of NEHC is converted into or
exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of NEHC outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting a
majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance).
"Commission" means the Securities and Exchange Commission.
"Company" means AmeriServe Food Distribution, Inc., a Nebraska
corporation.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) an amount
equal to any extraordinary loss plus any net loss realized in connection with an
Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) provision for taxes based on income or
profits of such Person and its Subsidiaries for such period, to the extent that
such provision for taxes was included in computing such Consolidated Net Income,
plus (iii) consolidated interest expense of such Person and its Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings, and
net payments (if any) pursuant to Hedging Obligations), to the extent that any
such expense was deducted in computing such Consolidated Net Income, plus (iv)
depreciation, amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) and other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Subsidiaries for such period to
the extent that such depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income, plus (v) projected
quantifiable improvements in operating results (on an annualized basis) due to
cost reductions calculated in accordance with Article 11 of Regulation S-X under
the Securities Act and evidenced by (A) in the case of cost reductions of less
than $10.0 million, an Officers' Certificate delivered to the Trustee and (B) in
the case of cost reductions of $10.0 million or more, a resolution of the Board
of Directors set forth in an Officers' Certificate delivered to the Trustee,
minus (vi) non-cash items increasing such Consolidated Net Income for such
period. Notwithstanding the foregoing, the provision for taxes on the income or
profits of, and the depreciation and amortization and other non-cash charges of,
a Subsidiary of the referent Person shall be added to Consolidated Net Income to
compute Consolidated Cash Flow only to the extent that a corresponding amount
would be permitted at the date of determination to be
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dividended to NEHC by such Subsidiary without prior governmental approval (that
has not been obtained), and without direct or indirect restriction pursuant to
the terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to that
Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income (but not loss) of any Person that is
not a Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Subsidiary or its stockholders,
(iii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded, (iv) the cumulative effect of a change in accounting principles shall
be excluded and (v) the Net Income of any Unrestricted Subsidiary shall be
excluded, whether or not distributed to NEHC or one of its Restricted
Subsidiaries for purposes of Section 4.09 hereof and shall be included for
purposes of Section 4.07 hereof only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof.
"Consolidated Net Worth" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such Person
and its consolidated Subsidiaries as of such date plus (ii) the respective
amounts reported on such Person's balance sheet as of such date with respect to
any series of preferred stock (other than Disqualified Stock) that by its terms
is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the acquisition
of such business) subsequent to the date of the Indenture in the book value of
any asset owned by such Person or a consolidated Subsidiary of such Person, (y)
all investments as of such date in unconsolidated Subsidiaries and in Persons
that are not Subsidiaries (except, in each case, Permitted Investments), and (z)
all unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of NEHC who (i) was a member of such Board of
Directors on the date of the Indenture, (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election or (iii) any successor Continuing Directors appointed by
such Continuing Directors (or their successors).
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 10.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Agent" means the Bank of America, in its capacity as
Administrative Agent for the lenders party to the New Credit Facility or any
successor thereto or any person otherwise appointed.
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"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Notes" means Notes that are in the form of EXHIBIT A-1
attached hereto (but without including the text referred to in footnotes 1 and 3
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, until a successor shall have been
appointed and become such pursuant to Section 2.06 of this Indenture, and,
thereafter, "Depositary" shall mean or include such successor.
"Disqualified Stock" means 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 upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature; provided, however,
that any Capital Stock that would not qualify as Disqualified Stock but for
change of control provisions shall not constitute Disqualified Stock if the
provisions are not more favorable to the holders of such Capital Stock than the
provisions described under Section 4.14 hereof.
"DLJ" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
"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).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, the Brussels
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer by the Company to Holders to exchange
Senior Discount Notes for New Senior Discount Notes.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of NEHC and its Subsidiaries
(other than Indebtedness under the New Credit Facility) in existence on the date
of the Indenture, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period, the sum,
without duplication, of (i) the consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, whether paid or accrued (including,
without limitation, original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net payments (if any) pursuant to Hedging
Obligations) and (ii) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period, and (iii) any
interest expense on Indebtedness of another Person that is Guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of
such Person or one of its Restricted Subsidiaries (whether or not such
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Guarantee or Lien is called upon) and (iv) the product of (a) all dividend
payments, whether or not in cash, on any series of preferred stock of such
Person or any of its Restricted Subsidiaries, other than dividend payments on
Equity Interests payable solely in Equity Interests of NEHC, times (b) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory tax rate of
such Person, expressed as a decimal, in each case, on a consolidated basis and
in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. In the event that NEHC or any of
its Restricted Subsidiaries incurs, assumes, Guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. In addition, for
purposes of making the computation referred to above, (i) acquisitions that have
been made by NEHC or any of its Restricted Subsidiaries, including through
mergers or consolidations and including any related financing transactions,
during the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date shall be deemed to have occurred on the
first day of the four-quarter reference period and Consolidated Cash Flow for
such reference period shall be calculated without giving effect to clause (iii)
of the proviso set forth in the definition of Consolidated Net Income, and (ii)
the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, and (iii) the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to such Fixed
Charges will not be obligations of the referent Person or any of its Restricted
Subsidiaries following the Calculation Date.
"GAAP" means generally accepted accounting principles 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 have been approved by a significant segment of the accounting
profession, which are in effect on the date of the Indenture.
"Global Notes" means the Rule 144A Global Notes, the Regulation S
Temporary Global Notes and the Regulation S Permanent Global Notes and any Notes
exchanged for any of the foregoing in the Exchange Offer.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
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"Hedging Obligations" means, with respect to any Person, the obligations
of such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency rates.
"Xxxxxxx" means Xxxxxxx Industries, Inc., a Delaware corporation, the
indirect parent of NEHC.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all indebtedness of others
secured by a Lien on any asset of such Person (whether or not such indebtedness
is assumed by such Person) and, to the extent not otherwise included, the
Guarantee by such Person of any indebtedness of any other Person. The amount of
any Indebtedness outstanding as of any date shall be (i) the accreted value
thereof, in the case of any Indebtedness that does not require current payments
of interest, and (ii) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Initial Purchaser" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation.
"Insolvency or Liquidation Proceedings" means (i) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding, relative to NEHC or to the creditors of
NEHC, as such, or to the assets of NEHC, or (ii) any liquidation, dissolution,
reorganization or winding up of NEHC, whether voluntary or involuntary and
involving insolvency or bankruptcy, or (iii) any assignment for the benefit of
creditors or any other marshalling of assets and liabilities of NEHC.
"Institutional Accredited Investor" means an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If NEHC or any Restricted Subsidiary of NEHC sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of NEHC such
that, after giving effect to any such sale or disposition, such Person is no
longer a Restricted Subsidiary of NEHC, NEHC 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 Equity
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Interests of such Restricted Subsidiary not sold or disposed of in an amount
determined as provided in the final paragraph of the covenant described under
Section 4.07 hereof.
"Junior Exchangeable Preferred Stock" means the 15 % Junior Exchangeable
Preferred Stock due 2009 of NEHC.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal Corporate
Trust Office of the Trustee is located or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday, payment shall be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" means all liquidated damages then owing pursuant to
Section 5 of the Registration Rights Agreement.
"NEHC" means Nebco Xxxxx Holding Company, a Delaware corporation, the
parent of the Company.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (ii) any extraordinary or nonrecurring gain (but
not loss), together with any related provision for taxes on such extraordinary
or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by NEHC or any
of its Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of the direct costs relating to
such Asset Sale (including, without limitation, legal, accounting and investment
banking fees, and sales commissions) and any relocation expenses incurred as a
result thereof, taxes paid or payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements), and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"New Credit Facility" means that certain Credit Facility, dated as of the
date of the Indenture, by and among the Company and Bank of America, providing
for up to $150.0 million of revolving credit borrowings and $205.0 million of
term credit borrowings, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and in
each case as amended, modified, renewed, refunded, replaced or refinanced from
time to time.
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"New Senior Discount Notes " means NEHC's 12 3/8% Senior Discount Notes
due 2007, which will be issued in exchange for NEHC's Senior Discount Notes.
"Non-Recourse Debt" means Indebtedness (i) as to which neither NEHC nor
any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender; (ii) 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 (other than the Notes being
offered hereby) of NEHC or any of its Restricted Subsidiaries to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and (iii) as to which the
lenders have been notified in writing that they will not have any recourse to
the stock or assets of NEHC or any of its Restricted Subsidiaries.
"Note Custodian" means the Trustee when serving as custodian for the
Depositary with respect to the Notes in global form, or any successor entity
thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offer and sale of the Senior Discount Notes as
contemplated by the Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum, dated July 9, 1997,
relating to NEHC's offering and placement of the Senior Discount Notes.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of NEHC by
two Officers of NEHC, one of whom must be the principal executive officer, the
principal financial officer, the treasurer or the principal accounting officer
of NEHC, that meets the requirements of Section 10.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 10.05 hereof.
The counsel may be an employee of or counsel to NEHC, any Subsidiary of NEHC or
the Trustee.
"Participant" means, with respect to DTC, Euroclear or Cedel, a Person who
has an account with DTC, Euroclear or Cedel, respectively (and, with respect to
DTC, shall include Euroclear and Cedel).
"Permitted Business" means any of the businesses and any other businesses
related to the businesses engaged in by NEHC and its respective Restricted
Subsidiaries on the date of the Indenture.
"Permitted Investments" means (a) any Investment in NEHC or in a Wholly
Owned Restricted Subsidiary of NEHC that is engaged in a Permitted Business; (b)
any Investment in Cash Equivalents; (c) any Investment by NEHC or any Restricted
Subsidiary of NEHC in a Person, if as a result of such Investment (i) such
Person becomes a Wholly Owned Restricted Subsidiary of NEHC that is engaged in a
Permitted Business or (ii) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, NEHC or a Wholly Owned Restricted
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Subsidiary of NEHC that is engaged in a Permitted Business; (d) any Restricted
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;
(e) any acquisition of assets solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of NEHC; (f) loans and advances made
after the date of the Indenture to Xxxxxxx not to exceed $12.0 million at any
time outstanding; and (g) other Investments made after the date of the Indenture
in any Person having an aggregate fair market value (measured on the date each
such Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant to this
clause (g) that are at the time outstanding, not to exceed $12.0 million.
"Permitted Liens" means (i) Liens securing Indebtedness under the New
Credit Facility that was permitted by the terms of the Indenture to be incurred;
(ii) Liens in favor of NEHC; (iii) Liens on property of a Person existing at the
time such Person is merged into or consolidated with NEHC or any Restricted
Subsidiary of NEHC; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with NEHC; (iv) Liens
on property existing at the time of acquisition thereof by NEHC or any
Restricted Subsidiary of NEHC, provided that such Liens were in existence prior
to the contemplation of such acquisition; (v) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (vi)
Liens existing on the date of the Indenture; (vii) Liens for taxes, assessments
or governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(viii) Liens incurred in the ordinary course of business of NEHC or any
Restricted Subsidiary of NEHC with respect to obligations that do not exceed
$7.0 million at any one time outstanding and that (a) are not incurred in
connection with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b) do not in
the aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by NEHC or such Restricted
Subsidiary and (ix) Liens on assets of Unrestricted Subsidiaries that (A) secure
Non-Recourse Debt of Unrestricted Subsidiaries or (B) are incurred in connection
with a Receivables Transaction.
"Permitted Refinancing Indebtedness" means any Indebtedness of NEHC or any
of its Restricted Subsidiaries issued in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of NEHC or any of its Restricted Subsidiaries; provided that: (i)
except for Indebtedness used to extend, refinance, renew, replace, defease or
refund the New Credit Facility, the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed the
principal amount of (or accreted value, if applicable), plus accrued interest
on, the Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of reasonable expenses incurred in connection
therewith); (ii) such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either by
NEHC or by the Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
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"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
"Principals" means Xxxxxxx, Xxxx X. Xxxxxx, Orkla ASA, Nebco Xxxxx
Distributors, Inc., DLJ Merchant Banking, L.P., DLJ International Partners,
C.V., DLJ Offshore Partners, C.V., DLJ Merchant Banking Funding, Inc., DLJ
Merchant Banking Partners II, L.P., DLJ Merchant Banking Partners XX-X, X.X.,
XXX Xxxxxxxx Xxxxxxxx XX, X.X., XXX Diversified Partners, DLJ Diversified
Partners-A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium Partners-A,
L.P., DLJMB Funding II, Inc., DLJ First ESC LLC, DLJ EAB Partners, L.P. and UK
Investment Plan 1997 Partners.
"Private Placement Legend" means the legend initially set forth on the
Senior Discount Notes in the form set forth in Section 2.06(g) hereof.
"Public Equity Offering" means a public offering of Equity Interests
(other than Disqualified Stock) of (i) NEHC; or (ii) Xxxxxxx.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act.
"Receivables" means, with respect to any Person or entity, all of the
following property and interests in property of such Person or entity, whether
now existing or existing in the future or hereafter acquired or arising: (i)
accounts, (ii) accounts receivable incurred in the ordinary course of business,
including without limitation, all rights to payment created by or arising from
sales of goods, leases of goods or the rendition of services no matter how
evidenced, whether or not earned by performance. (iii) all rights to any goods
or merchandise represented by any of the foregoing after creation of the
foregoing, including, without limitation, returned or repossessed goods, (iv)
all reserves and credit balances with respect to any such accounts receivable or
account debtors, (v) all letters of credit, security, or guarantees for any of
the foregoing, (vi) all insurance policies or reports relating to any of the
foregoing, (vii) all collection or deposit accounts relating to any of the
foregoing, (viii) all proceeds of the foregoing and (ix) all books and records
relating to any of the foregoing.
"Receivables Subsidiary" means an Unrestricted Subsidiary exclusively
engaged in Receivables Transactions and activities related thereto; provided,
however, that (i) at no time shall NEHC and its Subsidiaries have more than one
Receivables Subsidiary and (ii) all Indebtedness or other borrowings of such
Unrestricted Subsidiary shall be Non-Recourse Debt.
"Receivables Transaction" means (i) the sale or other disposition to a
third party of Receivables or an interest therein, or (ii) the sale or other
disposition of Receivables or an interest therein to a Receivables Subsidiary
followed by a financing transaction in connection with such sale or disposition
of such Receivables (whether such financing transaction is effected by such
Receivables Subsidiary or by a third party to whom such Receivables Subsidiary
sells such Receivables or interests therein); provided that in each of the
foregoing, NEHC or its Subsidiaries receive at least 80% of the aggregate
principal amount of any Receivables financed in such transaction.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the date hereof, between NEHC and the Initial Purchaser.
"Regulation S" means Regulation S promulgated under the Securities Act.
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"Regulation S Global Notes" means the Regulation S Temporary Global Notes
or the Regulation S Permanent Global Notes as applicable.
"Regulation S Permanent Global Notes" means the permanent global notes
that do not contain the paragraphs referred to in footnote 1 to the form of Note
attached hereto as Exhibit A-2 and that are deposited with and registered in the
name of the Depositary or its nominee, representing a series of Notes sold in
reliance on Regulation S.
"Regulation S Temporary Global Notes" means the temporary global notes
that contain the paragraphs referred to in footnote 1 to the form of Note
attached hereto as Exhibit A-2 and that are deposited with and registered in the
name of the Depositary or its nominee, representing a series of Notes sold in
reliance on Regulation S.
"Related Party" with respect to any Principal means (A) any controlling
stockholder or partner, 80% (or more) owned Subsidiary, or spouse or immediate
family member (in the case of an individual) of such Principal or (B) 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 such Principal
and/or such other Persons referred to in the immediately preceding clause (A).
"Responsible Officer" when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Beneficial Interest" means any beneficial interest of a
Participant or Indirect Participant in the Rule 144A Global Note or the
Regulation S Global Note.
"Restricted Broker Dealer" has the meaning set forth in the Registration
Rights Agreement.
"Restricted Global Notes" means the Rule 144A Global Notes and the
Regulation S Global Notes, all of which shall bear the Private Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Notes" means the permanent global notes that contain the
paragraph referred to in footnote 1 and the additional schedule referred to in
footnote 3 to the form of the Note attached hereto as EXHIBIT A-1, and that is
deposited with and registered in the name of the Depositary or its nominee,
representing a series of Notes sold in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Discount Notes" means NEHC's 12 3/8% Senior Discount Notes due
2007.
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Senior Exchangeable Preferred Stock" means the 13 1/2% Senior
Exchangeable Preferred Stock due 2009 of NEHC.
"Senior Subordinated Note Guarantees" means the note guarantees executed
by the Company's subsidiary guarantors to each Holder of a Senior Subordinated
Note.
"Senior Subordinated Notes" means the Company's 10 1/8% Senior
Subordinated Notes due 2007.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means 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
hereof.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i) 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) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) 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 such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss.ss.77aaa-77bbbb), as amended, as in effect on the date hereof.
"Transfer Restricted Securities" means Notes or beneficial interests
therein that bear or are required to bear the Private Placement Legend.
"Trustee" means State Street Bank and Trust Company until a successor
replaces it in accordance with the applicable provisions of this Indenture, and
thereafter means the successor.
"Unrestricted Global Notes" means one or more Global Notes that do not and
are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary that is designated by
the Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that such Subsidiary: (a) has no Indebtedness
other than Non-Recourse Debt; (b) is not party to any agreement, contract,
arrangement or understanding with NEHC or any Restricted Subsidiary of NEHC
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to NEHC or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates of NEHC; (c)
is a Person with respect to which neither NEHC nor any of its Restricted
Subsidiaries has any direct or indirect obligation (x) to subscribe for
additional Equity Interests or (y) to maintain or preserve such
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Person's financial condition or to cause such Person to achieve any specified
levels of operating results; (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of NEHC or any of its
Restricted Subsidiaries; and (e) has at least one director on its board of
directors that is not a director or executive officer of NEHC or any of its
Restricted Subsidiaries and has at least one executive officer that is not a
director or executive officer of NEHC or any of its Restricted Subsidiaries. Any
such designation by the Board of Directors shall be evidenced to the Trustee by
filing with the Trustee a certified copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions and was permitted by Section
4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of the Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of NEHC as of such date (and, if such Indebtedness is not permitted
to be incurred as of such date under Section 4.09 hereof, NEHC shall be in
default of such covenant). The Board of Directors of NEHC may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of NEHC of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (i) such
Indebtedness is permitted under Section 4.09 hereof, and (ii) no Default or
Event of Default would be in existence following such designation.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity"' means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person and one or
more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction" .......................................... 4.11
"Asset Sale Offer" ............................................... 4.10
"Change of Control Offer" ........................................ 4.14
"Change of Control Payment" ...................................... 4.14
"Change of Control Payment Date" ................................. 4.14
"Covenant Defeasance" ............................................ 8.03
"Custodian" ...................................................... 6.01
"DTC" ............................................................ 2.03
"Event of Default" ............................................... 6.01
"Excess Proceeds" ................................................ 4.10
"incur" .......................................................... 4.09
"Legal Defeasance" ............................................... 8.02
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"Offer Amount" ................................................... 3.09
"Offer Period" ................................................... 3.09
"Paying Agent" ................................................... 2.03
"Payment Default" ................................................ 6.01
"Permitted Debt" ................................................. 4.09
"Purchase Date" .................................................. 3.09
"Registrar" ...................................................... 2.03
"Repurchase Offer" ............................................... 3.09
"Restricted Payments" ............................................ 4.07
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;
"obligor" on the Notes means NEHC and any successor obligor upon
the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by the Commission rule
under the TIA have the meanings so assigned to them therein.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
(2) an accounting term not otherwise defined herein 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) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time.
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ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBIT A-1 or EXHIBIT A-2 attached hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes initially shall be issued in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and NEHC and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
(a) Global Notes. Notes offered and sold to QIBs in reliance on Rule 144A
shall be issued initially in the form of Rule 144A Global Notes, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with a
custodian of the Depositary, and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by NEHC and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the Rule 144A
Global Notes may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary or its nominee as hereinafter
provided.
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Note, which shall he
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, 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 Cedel, duly executed by NEHC and
authenticated by the Trustee as hereinafter provided. The "40-day restricted
period" (as defined in Regulation S) shall be terminated upon the receipt by the
Trustee of (i) a written certificate from the Depositary, together with copies
of certificates from Euroclear and Cedel certifying that they have received
certification of non-United States beneficial ownership of 100% of the aggregate
principal amount of the Regulation S Temporary Global Notes (except to the
extent of any beneficial owners thereof who acquired an interest therein
pursuant to another exemption from registration under the Securities Act and who
will take delivery of a beneficial ownership interest in a Rule 144A Global
Note, all as contemplated by Section 2.06(a)(ii) hereof), and (ii) an Officers'
Certificate from NEHC certifying as to the same matters covered in clause (i)
above. Following the termination of the 40-day restricted period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in Regulation S Permanent Global Notes pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Notes, the Trustee shall cancel the Regulation S Temporary
Global Notes. The aggregate principal amount of the Regulation S Temporary
Global Notes and the Regulation S Permanent Global Notes 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.
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent the aggregate
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges, redemptions and
transfers of interests. Any endorsement of a Global Note to reflect the amount
of any increase or decrease in the amount of outstanding Notes represented
thereby shall be made by the Trustee or the Note Custodian,
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at the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations" and "Instructions to Participants" of Cedel shall be applicable to
interests in the Regulation S Temporary Global Notes and the Regulation S
Permanent Global Notes that are held by Participants through Euroclear or Cedel.
The Trustee shall have no obligation to notify Holders of any such procedures or
to monitor or enforce compliance with the same.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depositary
or to a successor of the Depositary or its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only to Rule
144A Global Notes and Regulation S Permanent Global Notes deposited with or on
behalf of the Depositary.
NEHC shall execute and the Trustee shall, in accordance with this Section
2.01(b), authenticate and deliver the Global Notes that (i) shall be registered
in the name of the Depositary or the nominee of the Depositary and (ii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions or held by the Trustee as custodian for the Depositary.
Participants shall have no rights either under this Indenture with respect
to any Global Note held on their behalf by the Depositary or by the Note
Custodian as custodian for the Depositary or under such Global Note, and the
Depositary may be treated by NEHC, the Trustee and any agent of NEHC or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent NEHC, the Trustee or
any agent of NEHC or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Participants, the operation of
customary practices of such Depositary governing the exercise of the rights of
an owner of a beneficial interest in any Global Note.
(c) Definitive Notes. Notes issued in certificated form shall be
substantially in the form of EXHIBIT A-1 attached hereto (but without including
the text referred to in footnotes 1 and 3 thereto).
SECTION 2.02. EXECUTION AND AUTHENTICATION.
An Officer shall sign the Notes for NEHC by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture. The form of Trustee's certificate of
authentication to be borne by the Notes shall be substantially as set forth in
EXHIBIT A-1 or EXHIBIT A-2 hereto.
The Trustee shall, upon a written order of NEHC signed by an Officer
directing the Trustee to authenticate the Notes and certifying that all
conditions precedent to the issuance of the Notes contained herein have been
complied with, authenticate Notes for original issue up to the aggregate
principal amount stated in paragraph 4 of the Notes. The Trustee shall, upon
written order of NEHC signed by an Officer,
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authenticate New Senior Discount Notes for original issuance in exchange for a
like principal amount of Senior Discount Notes exchanged in the Exchange Offer
or otherwise exchanged for New Senior Discount Notes pursuant to the terms of
the Registration Rights Agreement. The aggregate principal amount of Notes
outstanding at any time may not exceed such amount except as provided in Section
2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to NEHC 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 NEHC or an Affiliate of NEHC.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
NEHC shall maintain (i) an office or agency where Notes may be presented
for registration of transfer or for exchange ("Registrar") and (ii) an office or
agency where Notes may be presented for payment ("Paying Agent"). The Registrar
shall keep a register of the Notes and of their transfer and exchange. NEHC may
appoint one or more additional paying agents. The term "Paying Agent" includes
any additional paying agent. NEHC may change any Paying Agent or Registrar
without notice to any Holder. NEHC shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If NEHC fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. NEHC or any of its Subsidiaries may act as Paying Agent or
Registrar.
NEHC initially appoints The Depository Trust Company ("DTC") to act as
Depositary with respect to the Global Notes.
NEHC initially appoints the Trustee to act as the Registrar and Paying
Agent and to act as Note Custodian with respect to the Global Notes. NEHC
initially appoints the Trustee to act as the Registrar and Paying Agent with
respect to the Definitive Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
NEHC shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal,
premium or Liquidated Damages, if any, or interest on the Notes, and shall
notify the Trustee of any default by NEHC 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. NEHC 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 NEHC or a Subsidiary) shall have no further
liability for the money. If NEHC or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon the occurrence of events specified in
Section 6.01(viii) and (ix) hereof, the Trustee shall serve as Paying Agent for
the Notes.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, NEHC shall furnish to the Trustee at least seven (7) 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
NEHC shall otherwise comply with TIA ss.312(a).
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SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes. The transfer and exchange of
Global Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture and the procedures of the
Depositary therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Beneficial
interests in a Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the legend in subsection
(g) of this Section 2.06. Transfers of beneficial interests in the Global Notes
to Persons required to take delivery thereof in the form of an interest in
another Global Note shall be permitted as follows:
(i) Rule 144A Global Note to Regulation S Global Note. If, at any
time, an owner of a beneficial interest in a Rule 144A Global
Note deposited with the Depositary (or the Trustee as
custodian for the Depositary) wishes to transfer its
beneficial interest in such Rule 144A Global Note to a Person
who is required or permitted to take delivery thereof in the
form of an interest in a Regulation S Global Note, such owner
shall, subject to the Applicable Procedures, exchange or cause
the exchange of such interest for an equivalent beneficial
interest in a Regulation S Global Note as provided in this
Section 2.06(a)(i). Upon receipt by the Trustee of (1)
instructions given in accordance with the Applicable
Procedures from a Participant directing the Trustee to credit
or cause to be credited a beneficial interest in the
Regulation S Global Note in an amount equal to the beneficial
interest in the Rule 144A Global Note to be exchanged, (2) a
written order given in accordance with the Applicable
Procedures containing information regarding the Participant
account of the Depositary and the Euroclear or Cedel account
to be credited with such increase, and (3) a certificate in
the form of EXHIBIT B-1 hereto given by the owner of such
beneficial interest stating that the transfer of such interest
has been made in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in
accordance with Rule 903 or Rule 904 of Regulation S, then the
Trustee, as Registrar, shall instruct the Depositary to reduce
or cause to be reduced the aggregate principal amount at
maturity of the applicable Rule 144A Global Note and to
increase or cause to be increased the aggregate principal
amount at maturity of the applicable Regulation S Global Note
by the principal amount at maturity of the beneficial interest
in the Rule 144A Global Note to be exchanged or transferred,
to credit or cause to be credited to the account of the Person
specified in such instructions, a beneficial interest in the
Regulation S Global Note equal to the reduction in the
aggregate principal amount at maturity of the Rule 144A Global
Note, and to debit, or cause to be debited, from the account
of the Person making such exchange or transfer the beneficial
interest in the Rule 144A Global Note that is being exchanged
or transferred.
(ii) Regulation S Global Note to Rule 144A Global Note. If, at any
time, after the expiration of the 40-day restricted period, an
owner of a beneficial interest in a Regulation S Global Note
deposited with the Depositary or with the Trustee as custodian
for the Depositary wishes to transfer its beneficial interest
in such Regulation S Global Note to a Person who is required
or permitted to take delivery thereof in the form of an
interest in a Rule 144A Global Note, such owner shall, subject
to the Applicable Procedures, exchange or cause the exchange
of such interest for an equivalent beneficial interest in a
Rule 144A
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Global Note as provided in this Section 2.06(a)(ii). Upon
receipt by the Trustee of (1) instructions from Euroclear or
Cedel, if applicable, and the Depositary, directing the
Trustee, as Registrar, to credit or cause to be credited a
beneficial interest in the Rule 144A Global Note equal to the
beneficial interest in the Regulation S Global Note to be
exchanged, such instructions to contain information regarding
the Participant account with the Depositary to be credited
with such increase, (2) a written order given in accordance
with the Applicable Procedures containing information
regarding the participant account of the Depositary and (3) a
certificate in the form of EXHIBIT B-2 attached hereto given
by the owner of such beneficial interest stating (A) if the
transfer is pursuant to Rule 144A, that the Person
transferring such interest in a Regulation S Global Note
reasonably believes that the Person acquiring such interest in
a Rule 144A Global Note is a QIB and is obtaining such
beneficial interest in a transaction meeting the requirements
of Rule 144A and any applicable blue sky or securities laws of
any state of the United States, (B) that the transfer complies
with the requirements of Rule 144 under the Securities Act,
(C) if the transfer is to an Institutional Accredited Investor
that such transfer is in compliance with the Securities Act
and a certificate in the form of EXHIBIT C attached hereto
and, if such transfer is in respect of an aggregate principal
amount of less than $100,000, an Opinion of Counsel acceptable
to NEHC that such transfer is in compliance with the
Securities Act or (D) if the transfer is pursuant to any other
exemption from the registration requirements of the Securities
Act, that the transfer of such interest has been made in
compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the
requirements of the exemption claimed, such statement to be
supported by an Opinion of Counsel from the transferee or the
transferor in form reasonably acceptable to NEHC and to the
Registrar and in each case, in accordance with any applicable
securities laws of any state of the United States or any other
applicable jurisdiction, then the Trustee, as Registrar, shall
instruct the Depositary to reduce or cause to be reduced the
aggregate principal amount at maturity of such Regulation S
Global Note and to increase or cause to be increased the
aggregate principal amount at maturity of the applicable Rule
144A Global Note by the principal amount at maturity of the
beneficial interest in the Regulation S Global Note to be
exchanged or transferred, and the Trustee, as Registrar, shall
instruct the Depositary, concurrently with such reduction, to
credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the
applicable Rule 144A Global Note equal to the reduction in the
aggregate principal amount at maturity of such Regulation S
Global Note and to debit or cause to be debited from the
account of the Person making such transfer the beneficial
interest in the Regulation S Global Note that is being
exchanged or transferred.
(b) Transfer and Exchange of Definitive Notes. When Definitive Notes are
presented by a Holder to the Registrar with a request to register the transfer
of the Definitive Notes or to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested only if
the Definitive Notes are presented or surrendered for registration of transfer
or exchange, are endorsed and contain a signature guarantee or accompanied by a
written instrument of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney and contains a signature guarantee,
duly authorized in writing and the Registrar received the following
documentation (all of which may be submitted by facsimile):
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(i) in the case of Definitive Notes that are Transfer Restricted
Securities, such request shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being delivered
to the Registrar by a Holder for registration in the
name of such Holder, without transfer, or such Transfer
Restricted Security is being transferred to NEHC or any
of its Subsidiaries, a certification to that effect from
such Holder (in substantially the form of EXHIBIT B-3
hereto); or
(B) if such Transfer Restricted Security is being
transferred to a QIB in accordance with Rule 144A under
the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to
that effect from such Holder (in substantially the form
of EXHIBIT B-3 hereto); or
(C) if such Transfer Restricted Security is being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 904 under the
Securities Act, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-3
hereto);
(D) if such Transfer Restricted Security 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) and (C) above, a
certification to that effect from such Holder (in
substantially the form of EXHIBIT B-3 hereto), a
certification substantially in the form of EXHIBIT C
hereto, and, if such transfer is in respect of an
aggregate principal amount of Notes of less than
$100,000, an Opinion of Counsel acceptable to NEHC that
such transfer is in compliance with the Securities Act;
or
(E) if such Transfer Restricted Security is being
transferred in reliance on any other exemption from the
registration requirements of the Securities Act, a
certification to that effect from such Holder (in
substantially the form of EXHIBIT B-3 hereto) and an
Opinion of Counsel from such Holder or the transferee
reasonably acceptable to NEHC and to the Registrar to
the effect that such transfer is in compliance with the
Securities Act.
(c) Transfer of a Beneficial Interest in a Rule 144A Global Note or
Regulation S Permanent Global Note for a Definitive Note.
(i) Any Person having a beneficial interest in a Rule 144A Global
Note or Regulation S Permanent Global Note may upon request,
subject to the Applicable Procedures, exchange such beneficial
interest for a Definitive Note. Upon receipt by the Trustee of
written instructions or such other form of instructions as is
customary for the Depositary (or Euroclear or Cedel, if
applicable), from the Depositary or its nominee on behalf of
any Person having a beneficial interest in a Rule 144A Global
Note or Regulation S Permanent Global Note, and, in the
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case of a Transfer Restricted Security, the following
additional information and documents (all of which may be
submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the
beneficial owner, a certification to that effect from
such Person (in substantially the form of EXHIBIT B-4
hereto);
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities
Act or pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or
pursuant to an effective registration statement under
the Securities Act, a certification to that effect from
the transferor (in substantially the form of EXHIBIT B-4
hereto);
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, pursuant to a private
placement exemption from the registration requirements
of the Securities Act (and based on an opinion of
counsel if NEHC so requests), a certification to that
effect from such Holder (in substantially the form of
EXHIBIT B-4 hereto) and a certificate from the
applicable transferee (in substantially the form of
EXHIBIT C hereto); or
(D) if such beneficial interest is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act, a certification to
that effect from the transferor (in substantially the
form of EXHIBIT B-4 hereto) and an Opinion of
Counsel from the transferee or the transferor reasonably
acceptable to NEHC and to the Registrar to the effect
that such transfer is in compliance with the Securities
Act, in which case the Trustee or the Note Custodian, at
the direction of the Trustee, shall, in accordance with
the standing instructions and procedures existing
between the Depositary and the Note Custodian, cause the
aggregate principal amount of Rule 144A Global Notes or
Regulation S Permanent Global Notes, as applicable, to
be reduced accordingly and, following such reduction,
NEHC shall execute and, the Trustee shall authenticate
and deliver to the transferee a Definitive Note in the
appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial interest
in a Rule 144A Global Note or Regulation S Permanent Global
Note, as applicable, pursuant to this Section 2.06(c) shall be
registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or
Indirect Participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Definitive Notes to
the Persons in whose names such Notes are so registered.
Following any such issuance of Definitive Notes, the Trustee,
as Registrar, shall instruct the Depositary to reduce or cause
to be reduced the aggregate principal amount at maturity of
the applicable Global Note to reflect the transfer.
(d) Restrictions on Transfer and Exchange of Global Notes. Notwithstanding
any other provision of this Indenture (other than the provisions set forth in
subsection (f) of this Section 2.06), a
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Global Note may not be transferred as a whole except 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.
(e) Transfer and Exchange of a Definitive Note for Beneficial Interests in
a Global Note. A Definitive Note may not be transferred or exchanged for a
beneficial interest in a Global Note.
(f) Authentication of Definitive Notes in Absence of Depositary. If at
any time:
(i) the Depositary for the Notes notifies NEHC that the Depositary
is unwilling or unable to continue as Depositary for the
Global Notes and a successor Depositary for the Global Notes
is not appointed by NEHC within 90 days after delivery of such
notice; or
(ii) NEHC, at its sole discretion, notifies the Trustee in writing
that it elects to cause the issuance of Definitive Notes under
this Indenture,
then NEHC shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii), (iii)
and (iv), each Note certificate evidencing Global Notes and
Definitive Notes (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend (the "Private
Placement Legend") in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF NEHC THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (l)(a) INSIDE THE UNITED STATES TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (d) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
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501(a)(1), (2), (3) OR (7) OF THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR"), THAT PRIOR TO SUCH
TRANSFER, FURNISHED THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN
BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS
THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO NEHC THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (e)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND, IN THE CASE OF CLAUSE
(b), (c), (d) OR (e), BASED UPON AN OPINION OF COUNSEL IF NEHC
SO REQUESTS), (2) TO NEHC OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act:
(A) in the case of any Transfer Restricted Security that is
a Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security
for a Definitive Note that does not bear the legend set
forth in (i) above and rescind any restriction on the
transfer of such Transfer Restricted Security upon
receipt of a certification from the transferring holder
substantially in the form of EXHIBIT B-4 hereto; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted
Security shall not be required to bear the legend set
forth in (i) above, but shall continue to be subject to
the provisions of Section 2.06(a) and (b) hereof;
provided, however, that with respect to any request for
an exchange of a Transfer Restricted Security that is
represented by a Global Note for a Definitive Note that
does not bear the legend set forth in (i) above, which
request is made in reliance upon Rule 144, the Holder
thereof shall certify in writing to the Registrar that
such request is being made pursuant to Rule 144 (such
certification to be substantially in the form of EXHIBIT
B-4 hereto).
(iii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) in reliance on any exemption from the
registration requirements of the Securities Act (other than
exemptions pursuant to Rule 144A or Rule 144 under the
Securities Act) in which the Holder or the transferee provides
an Opinion of Counsel to NEHC and the Registrar in form and
substance reasonably acceptable to NEHC and the Registrar
(which Opinion of Counsel shall also state that the transfer
restrictions contained in the legend are no longer
applicable):
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(A) in the case of any Transfer Restricted Security that is
a Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security
for a Definitive Note that does not bear the legend set
forth in (i) above and rescind any restriction on the
transfer of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted
Security shall not be required to bear the legend set
forth in (i) above, but shall continue to be subject to
the provisions of Section 2.06(a) and (b) hereof.
(iv) Notwithstanding the foregoing, upon the consummation of the
Exchange Offer in accordance with the Registration Rights
Agreement, NEHC shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof,
the Trustee shall authenticate (i) one or more Unrestricted
Global Notes in aggregate principal amount equal to the
principal amount of the Restricted Beneficial Interests
tendered for acceptance by persons that are not (x)
broker-dealers, (y) Persons participating in the distribution
of the Notes or (z) Persons who are affiliates (as defined in
Rule 144) of NEHC and accepted for exchange in the Exchange
Offer and (ii) Definitive Notes that do not bear the Private
Placement Legend in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted
for exchange in the Exchange Offer. Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate
principal amount of the applicable Restricted Global Notes to
be reduced accordingly and NEHC shall execute and the Trustee
shall authenticate and deliver to the Persons designated by
the Holders of Definitive Notes so accepted Definitive Notes
in the appropriate principal amount.
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in Global Notes have been exchanged for Definitive
Notes, redeemed, repurchased or cancelled, all Global Notes shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note, by the Trustee
or the Notes Custodian, at the direction of the Trustee, to reflect such
reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and
exchanges, NEHC shall execute and the Trustee
shall authenticate Global Notes and Definitive
Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for
any registration of transfer or exchange, but NEHC
may require payment of a sum sufficient to cover
any stamp or transfer tax or similar governmental
charge payable in connection therewith (other than
any such stamp or transfer taxes or similar
governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 4.10,
4.14 and 9.05 hereto).
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(iii) All Global Notes and Definitive Notes issued upon
any registration of transfer or exchange of Global
Notes or Definitive Notes shall be the valid
obligations of NEHC, evidencing the same debt, and
entitled to the same benefits under this
Indenture, as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or
exchange.
(iv) The Registrar shall not be required: (A) to issue,
to register the transfer of or to exchange Notes
during a period beginning at the opening of
fifteen (15) Business Days before the day of any
selection of Notes for redemption under Section
3.02 hereof and ending at the close of business on
the day of selection, (B) to register the transfer
of or to exchange any Note so selected for
redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in
part, or (C) to register the transfer of or to
exchange a Note between a record date and the next
succeeding interest payment date.
(v) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and
NEHC 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 neither the Trustee, any
Agent nor NEHC shall be affected by notice to the
contrary.
(vi) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions
of Section 2.02 hereof.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or NEHC and the
Trustee receives evidence to their satisfaction of the destruction, loss or
theft of any Note, NEHC shall issue and the Trustee, upon the written order of
NEHC signed by an Officer of NEHC, shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or NEHC, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and NEHC to protect NEHC, the Trustee, any Agent and any authenticating
agent from any loss that any of them may suffer if a Note is replaced. NEHC and
the Trustee may charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of NEHC and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, 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 NEHC or an Affiliate of NEHC holds
the Note.
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If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than NEHC, 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 shall be
deemed to be no longer outstanding and shall cease to accrue interest.
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 NEHC,
or by any Affiliate of NEHC shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes shown
on the Trustee's register as being owned shall be so disregarded.
Notwithstanding the foregoing, Notes that are to be acquired by NEHC or an
Affiliate of NEHC pursuant to an exchange offer, tender offer or other agreement
shall not be deemed to be owned by such entity until legal title to such Notes
passes to such entity.
SECTION 2.1O. TEMPORARY NOTES.
Until Definitive Notes are ready for delivery, NEHC may prepare and the
Trustee shall authenticate temporary Notes upon a written order of NEHC signed
by an Officer of NEHC. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that NEHC considers appropriate for
temporary Notes. Without unreasonable delay, NEHC shall prepare and the Trustee
shall upon receipt of a written order of NEHC signed by an Officer authenticate
Definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
SECTION 2.11. CANCELLATION.
NEHC at any time may deliver to the Trustee for cancellation any Notes
previously authenticated and delivered hereunder or which NEHC may have acquired
in any manner whatsoever, and all Notes so delivered shall be promptly cancelled
by the Trustee. All Notes surrendered for registration of transfer, exchange or
payment, if surrendered to any Person other than the Trustee, shall be delivered
to the Trustee. The Trustee and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation.
Subject to Section 2.07 hereof, NEHC may not issue new Notes to replace Notes
that it has redeemed or paid or that have been delivered to the Trustee for
cancellation. All cancelled Notes held by the Trustee shall be destroyed and
certification of their destruction delivered to NEHC, unless by a written order,
signed by an Officer of NEHC, NEHC shall direct that cancelled Notes be returned
to it.
SECTION 2.12. DEFAULTED INTEREST.
If NEHC defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which date shall be at the earliest practicable
date but
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in all events at least five (5) Business Days prior to the payment date, in each
case at the rate provided in the Notes and in Section 4.01 hereof. NEHC shall
fix or cause to be fixed each such special record date and payment date, and
shall promptly thereafter, notify the Trustee of any such date. At least fifteen
(15) days before the special record date, NEHC (or the Trustee, in the name and
at the expense of NEHC) shall 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.
SECTION 2.13. RECORD DATE.
The record date for purposes of determining the identity of Holders of the
Notes entitled to vote or consent to any action by vote or consent authorized or
permitted under this Indenture shall be determined as provided for in TIA ss.
316 (c).
SECTION 2.14. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
SECTION 2.15. CUSIP NUMBER.
NEHC in issuing the Notes may use a "CUSIP" number, and if it does so, the
Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. NEHC shall promptly
notify the Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If NEHC elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 45
days but not more than 60 days before a redemption date (unless a shorter period
is acceptable to the Trustee) an Officers' Certificate setting forth (i) the
Section of this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.
If NEHC is required to make an offer to purchase Notes pursuant to Section
4.10 or 4.14 hereof, it shall furnish to the Trustee, at least 45 days before
the scheduled purchase date, an Officers' Certificate setting forth (i) the
section of this Indenture pursuant to which the offer to purchase shall occur,
(ii) the terms of the offer, (iii) the principal amount of Notes to be
purchased, (iv) the purchase price, (v) the purchase date and (vi) and further
setting forth a statement to the effect that (a) NEHC or one its Subsidiaries
has affected an Asset Sale and there are Excess Proceeds aggregating more than
$15.0 million or (b) a Change of Control has occurred, as applicable.
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SECTION 3.02. SELECTION OF NOTES T0 BE REDEEMED OR PURCHASED.
If less than all of the Notes are to be redeemed at any time, selection of
Notes for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed, or, if the Notes are not so listed, on a pro rata basis, by
lot or by such method as the Trustee shall deem fair and appropriate; provided
that no Notes of $1,000 or less shall he redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more than 60 days before
the redemption date to each Holder of Notes to be redeemed at its registered
address. Notices of redemption may not be conditional. If any Note is to be
redeemed in part only, the notice of redemption that relates to such Note shall
state the portion of the principal amount thereof to be redeemed. A new Note in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Note. Notes called
for redemption become due on the date fixed for redemption. On and after the
redemption date, interest ceases to accrue on Notes or portions of them called
for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date, NEHC
shall mail or cause to be mailed by first class mail, a notice of redemption to
each Holder whose Notes are to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price for the Notes and accrued interest,
and Liquidated Damages, if any;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Notes to be redeemed and that, after
the redemption date, upon surrender of such Note, a new Note
or Notes in principal amount equal to the unredeemed portion
shall be issued upon surrender 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 NEHC defaults in making such redemption payment,
interest and Liquidated Damages, if any, on Notes called for
redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being
redeemed; and
(8) 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 NEHC's request, the Trustee shall give the notice of redemption in
NEHC's name and at NEHC's expense; provided, however, that NEHC shall have
delivered to the Trustee, at least 45 days
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prior to the redemption date (or such shorter period as shall be acceptable to
the Trustee), an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in the notice as provided
in the preceding paragraph. The notice mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not the Holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the Holder of any Note shall not affect the validity of
the proceeding for the redemption of any other Note.
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 plus accrued and unpaid interest and
Liquidated Damages, if any, to such date. A notice of redemption may not be
conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
On or before 10:00 a.m. (New York City time) on each redemption date or
the date on which Notes must be accepted for purchase pursuant to Section 4.10
or 4.14, NEHC shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued and unpaid interest and
Liquidated Damages, if any, on all Notes to be redeemed or purchased on that
date. The Trustee or the Paying Agent shall promptly return to NEHC upon its
written request any money deposited with the Trustee or the Paying Agent by NEHC
in excess of the amounts necessary to pay the redemption price of (including any
applicable premium), accrued interest and Liquidated Damages, if any, on all
Notes to be redeemed or purchased.
If Notes called for redemption or tendered in an Asset Sale Offer or
Change of Control Offer are paid or if NEHC has deposited with the Trustee or
Paying Agent money sufficient to pay the redemption or purchase price of, unpaid
and accrued interest and Liquidated Damages, if any, on all Notes to be redeemed
or purchased, on and after the redemption or purchase date interest and
Liquidated Damages, if any, shall cease to accrue on the Notes or the portions
of Notes called for redemption or tendered and not withdrawn in an Asset Sale
Offer or Change of Control Offer (regardless of whether certificates for such
securities are actually surrendered). 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 and Liquidated Damages, if any, shall
be paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption shall not be so
paid upon surrender for redemption because of the failure of NEHC to comply with
the preceding paragraph, interest shall be paid on the unpaid principal and
Liquidated Damages, if any, from the redemption or purchase date until such
principal and Liquidated Dames, if any, is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case, at the rate provided
in the Notes and in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, NEHC shall issue and,
upon NEHC's written request, the Trustee shall authenticate for the Holder at
the expense of NEHC a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
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(a) Except as set forth in the next paragraph, the Notes will not be
redeemable at NEHC's option prior to July 15, 2002. Thereafter, the Notes will
be subject to redemption at any time at the option of NEHC, in whole or in part,
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 and Liquidated Damages thereon, if any, to the applicable
redemption date, if redeemed during the twelve-month period beginning on July 15
of the years indicated below:
Year Percentage
2002 ............................................. 106.188%
2003 ............................................. 104.125%
2004 ............................................. 102.063%
2005 and thereafter .............................. 100.000%
(b) Notwithstanding the foregoing, at any time NEHC may redeem the Notes,
in whole but not in part, at the option of NEHC, at a redemption price of
112.375% of the Accreted Value (determined at the date of redemption), with the
net cash proceeds of a Public Equity Offering; provided that such redemption
shall occur within 45 days of the date of the closing of such Public Equity
Offering.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under Sections 3.09, 4.10 and 4.14 hereof, NEHC shall
not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
SECTION 3.09. REPURCHASE OFFERS.
In the event that NEHC shall be required to commence an offer to all
Holders to repurchase Notes (a "Repurchase Offer") pursuant to Section 4.10
hereof, an "Excess Proceeds Offer," or pursuant to Section 4.14 hereof, a
"Change of Control Offer," NEHC shall follow the procedures specified below.
A Repurchase Offer shall commence no earlier than 30 days and no later
than 60 days after a Change of Control (unless NEHC is not required to make such
offer pursuant to Section 4.14(c) hereof) or an Excess Proceeds Offer Triggering
Event (as defined below), as the case may be, and remain open for a period of
twenty (20) Business Days following its commencement and no longer, except to
the extent that a longer period is required by applicable law (the "Offer
Period"). No later than five (5) Business Days after the termination of the
Offer Period (the "Purchase Date"), NEHC shall purchase the principal amount of
Notes required to be purchased pursuant to Section 4.10 hereof, in the case of
an Excess Proceeds Offer, or 4.14 hereof, in the case of a Change of Control
Offer (the "Offer Amount") or, if less than the Offer Amount has been tendered,
all Notes tendered in response to the Repurchase Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.
If 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 and
Liquidated Damages, if any, shall 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 or Liquidated Damages, if any, shall be payable to Holders who tender
Notes pursuant to the Repurchase Offer.
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Upon the commencement of a Repurchase Offer, NEHC shall send, by first
class mail, a notice to the Trustee and each of the Holders, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to such Repurchase Offer. The
Repurchase Offer shall be made to all Holders. The notice, which shall govern
the terms of the Repurchase Offer, shall describe the transaction or
transactions that constitute the Change of Control or Excess Proceeds Offer
Triggering Event, as the case may be and shall state:
(a) that the Repurchase Offer is being made pursuant to this Section 3.09
and Section 4.10 or 4.14 hereof, as the case may be, and the length of
time the Repurchase Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue to
accrue interest;
(d) that, unless NEHC defaults in making such payment, any Note accepted
for payment pursuant to the Repurchase Offer shall cease to accrue
interest and Liquidated Damages, if any, after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to a
Repurchase Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note,
duly completed, or transfer by book-entry transfer, to NEHC, the
Depositary, or the Paying Agent at the address specified in the notice not
later than the close of business on the last day of the Offer Period;
(f) that Holders shall be entitled to withdraw their election if NEHC, the
Depositary or the Paying Agent, as the case may be, receives, not later
than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Note purchased;
(g) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, NEHC shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by NEHC so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(h) that Holders whose Notes were purchased only in part shall be issued
new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before 10:00 a.m. (New York City time) on each Purchase Date, NEHC
shall irrevocably deposit with the Trustee or Paying Agent in immediately
available funds the aggregate purchase price with respect to a principal amount
of Notes equal to the Offer Amount, together with accrued and unpaid interest
and Liquidated Damages, if any, thereon, to be held for payment in accordance
with the terms of this Section 3.09. On the Purchase Date, NEHC shall, to the
extent lawful, (i) accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof tendered pursuant to
the Repurchase Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, (ii) deliver or cause the Paying Agent or depository, as the
case may be, to deliver to the Trustee Notes so accepted and (iii) deliver to
the Trustee an Officers' Certificate stating that such Notes or portions thereof
were accepted for payment by NEHC in accordance with the terms of this Section
3.09. NEHC,
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the Depositary or the Paying Agent, as the case may be, shall promptly (but in
any case not later than three (3) Business Days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of the
Notes tendered by such Holder and accepted by NEHC for purchase, plus any
accrued and unpaid interest and Liquidated Damages, if any, thereon, and NEHC
shall promptly issue a new Note, and the Trustee, shall authenticate and mail or
deliver such new Note, to such Holder, equal in principal amount to any
unpurchased portion of such Holder's Notes surrendered. Any Note not so accepted
shall be promptly mailed or delivered by NEHC to the Holder thereof. NEHC shall
publicly announce in a newspaper of general circulation or in a press release
provided to a nationally recognized financial wire service the results of the
Repurchase Offer on 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, 3.02, 3.05 and 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
NEHC shall pay or cause to be paid the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes. NEHC
shall pay all Liquidated Damages, if any, in the same manner on the dates and in
the amounts set forth in the Registration Rights Agreement. Principal, premium
and Liquidated Damages, if any, and interest, shall be considered paid for all
purposes hereunder on the date the Paying Agent if other than NEHC or a
Subsidiary thereof holds, as of 10:00 a.m. (New York City time) money deposited
by NEHC in immediately available funds and designated for and sufficient to pay
all such principal, premium and Liquidated Damages, if any, and interest, then
due.
NEHC shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to 1
% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
NEHC shall maintain in the Borough of Manhattan, the City of New York an
office or agency (which may be an office of the Trustee or an affiliate of the
Trustee or Registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon NEHC in
respect of the Notes and this Indenture may be served. NEHC shall 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 NEHC shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
NEHC may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
NEHC of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New
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York for such purposes. NEHC shall 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.
NEHC hereby designates the Corporate Trust Office of the Trustee as one
such office or agency of NEHC in accordance with Section 2.03 hereof.
SECTION 4.03. COMMISSION REPORTS.
From and after the earlier of the effective date of the Exchange Offer
Registration Statement or the effective date of the Shelf Registration
Statement, whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, NEHC shall furnish to the
Holders of Notes (i) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms 10-Q and
10-K if NEHC were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by NEHC's
certified independent accountants and (ii) all current reports that would be
required to be filed with the Commission on Form 8-K if NEHC were required to
file such reports. In addition, whether or not required by the rules and
regulations of the Commission, NEHC shall file a copy of all such information
and reports with the Commission for public availability (unless the Commission
will not accept such a filing) within the time periods that would have been
applicable had NEHC been subject to such rules and regulations and make such
information available to securities analysts and prospective investors upon
request. In addition, NEHC has agreed that, for so long as any Notes remain
outstanding, it shall furnish to the Holders, 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. NEHC shall at
all times comply with TIA ss. 314(a).
The financial information to be distributed to Holders of Notes shall be
filed with the Trustee and mailed to the Holders at their addresses appearing in
the register of Notes maintained by the Registrar, within 90 days after the end
of NEHC's fiscal years and within 45 days after the end of each of the first
three quarters of each such fiscal year.
NEHC shall provide the Trustee with a sufficient number of copies of all
reports and other documents and information and, if requested by NEHC, the
Trustee will deliver such reports to the Holders under this Section 4.03.
SECTION 4.04. COMPLIANCE CERTIFICATE.
NEHC shall deliver to the Trustee, within 90 days after the end of each
fiscal year, an Officers' Certificate stating that a review of the activities of
NEHC and its Subsidiaries during the preceding fiscal year has been made under
the supervision of the signing Officers with a view to determining whether each
has kept, observed, performed and fulfilled its obligations under this Indenture
(including, with respect to any Restricted Payments made during such year, the
basis upon which the calculations required by Section 4.07 hereof were computed,
which calculations may be based on NEHC's latest available financial
statements), and further stating, as to each such Officer signing such
certificate, that, to the best of his or her knowledge, each entity has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action NEHC is taking or proposes
to take with respect thereto) and that, to the best of his or her knowledge, no
event has occurred and remains in existence by reason of which payments on
account of the principal of, premium or Liquidated Damages, if any, or interest
on the Notes is prohibited or if such event has
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occurred, a description of the event and what action NEHC is taking or proposes
to take with respect thereto.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, in connection with the
year-end financial statements delivered pursuant to Section 4.03 hereof, NEHC
shall use its best efforts to deliver a written statement of NEHC's independent
public accountants (who shall be a firm of established national reputation) that
in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe
that NEHC has violated any provisions of Article Four or Section 5.01 hereof or,
if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of any
such violation. In the event that such written statement of NEHC's independent
public accountants cannot be obtained, NEHC shall deliver an Officers'
Certificate certifying that it has used its best efforts to obtain such
statements and was unable to do so.
NEHC shall, so long as any of the Notes are outstanding, deliver to the
Trustee, forthwith upon any Officer becoming aware of any Default or Event of
Default, an Officers' Certificate specifying such Default or Event of Default
and what action NEHC is taking or proposes to take with respect thereto.
SECTION 4.05. TAXES.
NEHC shall pay, and shall 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 and with respect
to which appropriate reserves have been taken in accordance with GAAP.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
NEHC covenants (to the extent that it may lawfully do so) that it shall
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and NEHC (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
From and after the date hereof NEHC shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any
dividend or make any other payment or distribution on account of NEHC's or any
of its Restricted Subsidiaries' Equity Interests (including, without limitation,
any payment in connection with any merger or consolidation involving NEHC) or to
the direct or indirect holders of NEHC's or any of its Restricted Subsidiaries'
Equity Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of
NEHC); (ii) purchase, redeem or otherwise acquire or retire for value (including
without limitation, in connection with any merger or consolidation involving
NEHC) any Equity Interests of NEHC or any direct or indirect parent of NEHC;
(iii) make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness of NEHC that is pari
passu with or subordinated to the Notes (other than Notes), except a payment of
interest or principal at Stated Maturity; or (iv) make any Restricted Investment
(all such payments and other actions set forth
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in clauses (i) through (iv) above being collectively referred to as "Restricted
Payments"), unless, at the time of and after giving effect to such Restricted
Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) NEHC would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by NEHC and its Subsidiaries after the
date hereof (excluding Restricted Payments permitted by clause (ii) of the
next succeeding paragraph), is less than the sum of (i) 50% of the
Consolidated Net Income of NEHC for the period (taken as one accounting
period) from the beginning of the first fiscal quarter commencing after
the date of the Indenture to the end of NEHC's most recently ended fiscal
quarter for which internal financial statements are available at the time
of such Restricted Payment (or, if such Consolidated Net Income for such
period is a deficit, less 100% of such deficit), plus (ii) 100% of the
aggregate net cash proceeds received by NEHC from the issue or sale since
the date of the Indenture of Equity Interests of NEHC (other than
Disqualified Stock) or of Disqualified Stock or debt securities of NEHC
that have been converted into such Equity Interests (other than Equity
Interests (or Disqualified Stock or convertible debt securities) sold to a
Subsidiary of NEHC and other than Disqualified Stock or convertible debt
securities that have been converted into Disqualified Stock), plus (iii)
to the extent that any Restricted Investment that was made after the date
of the Indenture is sold for cash or otherwise liquidated or repaid for
cash, the lesser of (A) the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if any) and (B) the
initial amount of such Restricted Investment plus (iv) if any Unrestricted
Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market
value of such redesignated Subsidiary (as determined in good faith by the
Board of Directors) as of the date of its redesignation or (B) pays any
cash dividends or cash distributions to NEHC or any of its Restricted
Subsidiaries, 50% of any such cash dividends or cash distributions made
after the date hereof.
The foregoing provisions shall not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions hereof; (ii)
the redemption, repurchase, retirement, defeasance or other acquisition of any
pari passu or subordinated Indebtedness or Equity Interests of NEHC in exchange
for, or out of the net cash proceeds of the substantially concurrent sale or
issuance (other than to a Restricted Subsidiary of NEHC) of, other Equity
Interests of NEHC (other than any Disqualified Stock); provided that the amount
of any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall be excluded from
clause (c) (ii) of the preceding paragraph; (iii) the defeasance, redemption,
repurchase or other acquisition of pari passu or subordinated Indebtedness with
the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the payment of any dividend by a Restricted Subsidiary of NEHC to the
holders of its Equity Interests on a pro rata basis; (v) the declaration or
payment of dividends to Xxxxxxx for expenses incurred by Xxxxxxx in its capacity
as a holding company that are attributable to the operations of NEHC and its
Restricted Subsidiaries, including, without limitation, (a) customary salary,
bonus and other benefits payable to officers and employees of Xxxxxxx, (b) fees
and expenses paid to members of the Board of Directors of Xxxxxxx, (c)
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general corporate overhead expenses of Xxxxxxx, (d) foreign, federal, state or
local tax liabilities paid by Xxxxxxx, (e) management, consulting or advisory
fees paid to Xxxxxxx not to exceed $1.0 million in any fiscal year, and (f) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of NEHC or Xxxxxxx held by any member of NEHC's (or any of its
Restricted Subsidiaries') management pursuant to any management equity
subscription agreement or stock option agreement in effect as of the date of the
Indenture; provided, however, the aggregate amount paid pursuant to the
foregoing clauses (a) through (f) does not exceed $10.0 million in any fiscal
year; (vi) Investments in any Person (other than NEHC or a Wholly-Owned
Restricted Subsidiary) engaged in a Permitted Business in an amount not to
exceed $7.0 million; (vii) other Investments in Unrestricted Subsidiaries having
an aggregate fair market value, taken together with all other Investments made
pursuant to this clause (vii) that are at that time outstanding, not to exceed
$3.0 million; (viii) Permitted Investments; (ix) payments to Xxxxxxx pursuant to
the tax sharing agreement among Xxxxxxx and other members of the affiliated
corporations of which Xxxxxxx is the common parent; (x) non-cash accretions to
the liquidation value of shares of Senior Exchangeable Preferred Stock and
shares of Junior Exchangeable Preferred Stock, and any payment in kind dividends
with respect to any of the foregoing; (xi) any exchange of shares of Senior
Exchangeable Preferred Stock and Junior Exchangeable Preferred Stock for 131/2 %
Subordinated Exchange Debentures due 2009, or 15% Subordinated Exchange
Debentures due 2009, as the case may be, pursuant to the terms of the Senior
Exchangeable Preferred Stock or Junior Exchangeable Preferred Stock, as the case
may be; and (xii) other Restricted Payments in an aggregate amount not to exceed
$15.0 million.
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default; provided
that in no event shall the business currently operated by the Company be
transferred to or held by an Unrestricted Subsidiary. For purposes of making
such determination, all outstanding Investments by NEHC and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated will be deemed to be Restricted Payments at the time of such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this covenant. All such outstanding Investments will be
deemed to constitute Investments in an amount equal to the fair market value of
such Investments at the time of such designation (as determined in good faith by
the Board of Directors). Such designation shall only be permitted if such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) shall 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 NEHC or such Subsidiary, as the case may
be, pursuant to the Restricted Payment. The fair market value of any non-cash
Restricted Payment shall be determined in good faith by the Board of Directors
whose resolution with respect thereto shall be delivered to the Trustee such
determination to be based upon an opinion or appraisal issued by an accounting,
appraisal or investment banking firm of national standing if such fair market
value exceeds $10.0 million. Not later than the date of making any Restricted
Payment, NEHC shall deliver to the Trustee an Officers' Certificate stating that
such Restricted Payment is permitted and setting forth the basis upon which the
calculations required by the covenant "Restricted Payments" were computed,
together with a copy of any fairness opinion or appraisal required by the
Indenture.
SECTION 4.08. DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
NEHC shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to (i)(a) pay dividends or make any other distributions to NEHC or
any of its Restricted Subsidiaries (1) on its Capital Stock or (2) with respect
to any other interest or
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participation in, or measured by, its profits, or (b) pay any indebtedness owed
to NEHC or any of its Restricted Subsidiaries, (ii) make loans or advances to
NEHC or any of its Restricted Subsidiaries or (iii) transfer any of its
properties or assets to NEHC or any of its Restricted Subsidiaries, except for
such encumbrances or restrictions existing under or by reason of (a) Existing
Indebtedness as in effect on the date hereof, (b) the New Credit Facility as in
effect as of the date hereof, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
thereof, provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacement or refinancings are no more
restrictive in the aggregate (as determined by the Credit Agent in good faith)
with respect to such dividend and other payment restrictions than those
contained in the New Credit Facility as in effect on the date hereof, (c) this
Indenture and the Notes, (d) any applicable law, rule, regulation or order, (e)
any instrument governing Indebtedness or Capital Stock of a Person acquired by
NEHC or any of its Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness was incurred in connection
with or in contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired,
provided that, in the case of Indebtedness, such Indebtedness was permitted by
the terms hereof to be incurred, (f) by reason of customary non-assignment
provisions in leases entered into in the ordinary course of business and
consistent with past practices, (g) purchase money obligations for property
acquired in the ordinary course of business that impose restrictions of the
nature described in clause (iii) above on the property so acquired, (h)
Permitted Refinancing Indebtedness, provided that the material restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness
are no more restrictive than those contained in the agreements governing the
Indebtedness being refinanced (i) contracts for the sale of assets, including
without limitation customary restrictions with respect to a Subsidiary pursuant
to an agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary, and (j)
restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
NEHC shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and NEHC will
not issue any Disqualified Stock and will not permit any of its Subsidiaries to
issue any shares of preferred stock; provided, however, that NEHC may incur
Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if
the Fixed Charge Coverage Ratio for NEHC's most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock is issued would have been at least 2.0 to 1, determined on a
pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period.
The provisions of the first paragraph of this covenant will not apply to
the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Restricted Subsidiaries of NEHC of term
Indebtedness under the New Credit Facility; provided that the aggregate
principal amount of all term Indebtedness outstanding under the New Credit
Facility after giving effect to such incurrence does not exceed the aggregate
amount of term Indebtedness borrowed under the New Credit Facility on the date
hereof less the aggregate amount of all repayments, optional or mandatory, of
the principal of any term Indebtedness under the New Credit
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Facility (other than repayments that are immediately reborrowed) that have been
made since the date hereof; provided, that the foregoing proviso shall not limit
the principal amount of Permitted Refinancing Indebtedness that may be incurred
to refund, refinance or replace any Indebtedness incurred pursuant to this
clause (i);
(ii) the incurrence by the Restricted Subsidiaries of NEHC of revolving
Indebtedness and letters of credit pursuant to New Credit Facility; provided
that the aggregate principal amount of all revolving Indebtedness (with letters
of credit being deemed to have a principal amount equal to the maximum potential
liability of the Restricted Subsidiaries of NEHC thereunder) outstanding under
the New Credit Facility after giving effect to such incurrence does not exceed
$150.0 million; provided that the foregoing proviso shall not limit the amount
of Permitted Refinancing Indebtedness that may be incurred to refinance or
replace any Indebtedness incurred pursuant to this clause (ii);
(iii) the incurrence by NEHC and its Restricted Subsidiaries of the
Existing Indebtedness;
(iv) the incurrence by NEHC and its Restricted Subsidiaries of
Indebtedness represented by the Notes, the Senior Subordinated Notes and the
Senior Subordinated Note Guarantees;
(v) the incurrence by NEHC or any of its Restricted Subsidiaries of
Indebtedness represented by Capital Lease Obligations, mortgage financings or
purchase money obligations, in each case incurred for the purpose of financing
all or any part of the purchase price or cost of construction or improvement of
property, plant or equipment used in the business of NEHC or such Restricted
Subsidiary (whether through the direct purchase of assets or the Capital Stock
of any Person owning such Assets), in an aggregate principal amount not to
exceed $150.0 million;
(vi) the incurrence by NEHC or any of its Restricted Subsidiaries of
Indebtedness in connection with the acquisition of assets or a new Restricted
Subsidiary; provided that such Indebtedness was incurred by the prior owner of
such assets or such Restricted Subsidiary prior to such acquisition by NEHC or
one of its Subsidiaries and was not incurred in connection with, or in
contemplation of, such acquisition by NEHC or one of it Subsidiaries; provided
further that the principal amount (or accreted value, as applicable) of such
Indebtedness, together with any other outstanding Indebtedness incurred pursuant
to this clause (vi), does not exceed $7.0 million;
(vii) the incurrence by NEHC or any of its Restricted Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which
are used to refund, refinance or replace Indebtedness that was permitted by this
Indenture to be incurred;
(viii) the incurrence by NEHC or any of its Restricted Subsidiaries of
intercompany Indebtedness between or among NEHC and any of its Wholly Owned
Restricted Subsidiaries; provided, however, that (i) if NEHC is the obligor on
such Indebtedness and the payee is not a Subsidiary Guarantor, such Indebtedness
is expressly subordinated to the prior payment in full in cash of all
Obligations with respect to the Notes and (ii)(A) any subsequent issuance or
transfer of Equity Interests that results in any such Indebtedness being held by
a Person other than NEHC or a Wholly Owned Restricted Subsidiary and (B) any
sale or other transfer of any such Indebtedness to a Person that is not either
NEHC or a Wholly Owned Restricted Subsidiary shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by NEHC or such Restricted
Subsidiary, as the case may be;
(ix) the incurrence by NEHC or any of its Restricted Subsidiaries of
Hedging Obligations that are incurred for the purpose of fixing or hedging
currency risk or interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be outstanding;
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(x) the guarantee by NEHC or any of its Restricted Subsidiaries of
Indebtedness of NEHC or a Restricted Subsidiary of NEHC that was permitted to be
incurred by another provision of this covenant;
(xi) the incurrence by NEHC's Unrestricted Subsidiaries of Non-Recourse
Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse
Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an
incurrence of Indebtedness by a Restricted Subsidiary of NEHC;
(xii) Asset Sales in the form of Receivables Transactions;
(xiii) Indebtedness incurred by NEHC or any of its Restricted Subsidiaries
constituting reimbursement obligations with respect to letters of credit issued
in the ordinary course of business, including without limitation to letters of
credit in respect to workers' compensation claims or self-insurance, or other
Indebtedness with respect to reimbursement type obligations regarding workers'
compensation claims; provided, however, that upon the drawing of such letters
of credit or the incurrence of such Indebtedness, such obligations are
reimbursed within 30 days following such drawing or incurrence;
(xiv) Indebtedness arising from agreements of NEHC or a Restricted
Subsidiary providing for indemnification, adjustment of purchase price or
similar obligations, in each case, incurred or assumed in connection with the
disposition of any business, asset or a Subsidiary, other than guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or a Subsidiary for the purpose of financing such acquisition;
provided that the maximum aggregate liability of all such Indebtedness shall at
no time exceed 50% of the gross proceeds actually received by NEHC and its
Restricted Subsidiaries in connection with such disposition;
(xv) obligations in respect of performance and surety bonds and completion
guarantees provided by NEHC or any Restricted Subsidiary in the ordinary course
of business;
(xvi) any incurrence of Indebtedness permitted by clause (xi) of the
exceptions to Section 4.07;
(xvii) guarantees incurred in the ordinary course of business in an
aggregate principal amount not to exceed $7.0 millon at any time outstanding;
and
(xviii) the incurrence by NEHC or any of its Restricted Subsidiaries of
additional Indebtedness, including Attributable Debt incurred after the date of
the Indenture, in an aggregate principal amount (or accreted value, as
applicable) at any time outstanding, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any other Indebtedness
incurred pursuant to this clause (xviii), not to exceed $30.0 million.
For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xviii) above or
is entitled to be incurred pursuant to the first paragraph of this Section 4.09,
NEHC shall, in its sole discretion, classify such item of Indebtedness in any
manner that complies with this Section 4.09 and such item of Indebtedness will
be treated as having been incurred pursuant to only one of such clauses or
pursuant to the first paragraph hereof. Accrual of interest and the accretion of
accreted value will not be deemed to be an incurrence of Indebtedness for
purposes of this Section 4.09.
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SECTION 4.10. ASSETS SALES.
NEHC shall not, and shall not permit any of its Restricted Subsidiaries
to, consummate an Asset Sale other than transfers of Receivables to a
Receivables Subsidiary in connection with a Receivables Transaction unless (i)
NEHC (or the Restricted Subsidiary, as the case may be) receives consideration
at the time of such Asset Sale at least equal to the fair market value
(evidenced by a resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 80% of the consideration
therefor received by NEHC or such Restricted Subsidiary is in the form of cash;
provided that the amount of (x) any liabilities (as shown on NEHC's or such
Restricted Subsidiary's most recent balance sheet), of NEHC or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Notes or any guarantee thereof) that are assumed by
the transferee of any such assets pursuant to a customary novation agreement
that releases NEHC or such Restricted Subsidiary from further liability and (y)
any securities, notes or other obligations received by NEHC or any such
Restricted Subsidiary from such transferee that are converted by NEHC or such
Restricted Subsidiary into cash within 180 days (to the extent of the cash
received), shall be deemed to be cash for purposes of this provision.
Within 360 days after the receipt by NEHC of any Net Proceeds from an
Asset Sale, NEHC may apply such Net Proceeds, at its option, to the acquisition
of a controlling interest in another business, the making of a capital
expenditure or the acquisition of other long-term assets, in each case, in a
Permitted Business. Pending the final application of any such Net Proceeds, NEHC
may invest such Net Proceeds in any manner that is not prohibited by this
Indenture. Any Net Proceeds from Asset Sales received by NEHC that are not
applied or invested as provided in the first sentence of this paragraph will be
deemed to constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $20.0 million, NEHC will be required to make an offer to all
Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal
amount of Notes that may be purchased out of the Excess Proceeds, at an offer
price in cash in an amount equal to 100% of the Accreted Value thereof on the
date of purchase (if such date of purchase is prior to July 15, 2002) or 100% of
the principal amount thereof plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of purchase (if such date of purchase is on
or after July 15, 2002), in each case in accordance with the procedures set
forth in Section 3.09 hereof. To the extent that the aggregate amount of Notes
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, NEHC
may use any remaining Excess Proceeds for general corporate purposes. If the
aggregate principal amount of Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on
a pro rata basis. Upon completion of such offer to purchase, the amount of
Excess Proceeds shall be reset at zero.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
NEHC shall not, and shall not permit any of its Restricted Subsidiaries
to, make any payment to, or sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each of the
foregoing, an "Affiliate Transaction") involving consideration in excess of $5.0
million unless (i) such Affiliate Transaction is on terms that are no less
favorable to NEHC or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable transaction by NEHC or such Restricted
Subsidiary with an unrelated Person and (ii) NEHC delivers to the Trustee (a)
with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $7.5 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
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disinterested members of the Board of Directors (if such disinterested members
exist) and (b) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving either aggregate consideration in excess of
$15.0 million or an aggregate consideration in excess of $10.0 million where
there are no disinterested members of the Board of Directors, an opinion as to
the fairness to the Holders of such Affiliate Transaction from a financial point
of view issued by an accounting, appraisal or investment banking firm of
national standing; provided that the following shall not be deemed Affiliate
Transactions: (p) any transaction permitted by the Amended and Restated
Investors Agreement dated on or about July 11, 1997, as the same may be from
time to time amended, provided that no such amendment materially affects the
Notes, (q) any employment agreement entered into by NEHC or any of its
Restricted Subsidiaries in the ordinary course of business and consistent with
the past practice of NEHC or such Restricted Subsidiary, (r) transactions
between or among NEHC and/or its Restricted Subsidiaries, (s) Permitted
Investments and Restricted Payments that are permitted by the provisions of
Section 4.07 hereof, (t) customary loans, advances, fees and compensation paid
to, and indemnity provided on behalf of, officers, directors, employees or
consultant of NEHC or any of its Restricted Subsidiaries, (u) annual management
fees paid to Xxxxxxx not to exceed $5.0 million in any one year, (v) transaction
pursuant to any contract or agreement in effect on the date hereof as the same
may be amended, modified or replaced from time to time so long as any such
amendment, modification or replacement is no less favorable to NEHC and its
Restricted Subsidiaries than contract or agreement as in effect on the Issue
Date or is approved by a majority of the disinterested directors of NEHC, (w)
transactions between NEUC or its Restricted Subsidiaries on the one hand, and
Xxxxxxx on the other hand, involving the provision of financial or advisory
services by Xxxxxxx; provided that fees payable to Xxxxxxx do not exceed the
usual and customary fees for similar services, (x) transactions between NEHC or
its Restricted Subsidiaries on the one hand, and DLJ or its Affiliates on the
other hand, involving the provision of financial, advisory, lending, placement
or underwriting services by DLJ; provided that fees payable to DLJ do not exceed
the usual and customary fees of DLJ for similar services, (y) the insurance
arrangements between NEHC and its Subsidiaries and an Affiliate of Xxxxxxx that
are not less favorable to NEHC or any of its Subsidiaries than those that are in
effect on the date hereof provided such arrangements are conducted in the
ordinary course of business consistent with past practices, and (z) payments
under the tax sharing agreement among Xxxxxxx and other members of the
affiliated group of corporations of which it is the common parent.
SECTION 4.12. LIENS.
NEHC shall not and shall not permit any of its Restricted Subsidiaries to,
create, incur, assume or otherwise cause or suffer to exist or become effective
any Lien of any kind securing trade payables or Indebtedness of NEHC that is
subordinate to or pari passu with the Notes (other than Permitted Liens) upon
any of their property or assets, now owned or hereafter acquired.
SECTION 4.13. SALE AND LEASEBACK TRANSACTIONS.
NEHC shall not, and shall not permit any of its Restricted Subsidiaries
to, enter into any sale and leaseback transaction; provided that NEHC may, and
may permit its Restricted Subsidiaries to, enter into a sale and leaseback
transaction if (i) NEHC could have (a) incurred Indebtedness in an amount equal
to the Attributable Debt relating to such sale and leaseback transaction
pursuant to Section 4.09 hereof and (b) incurred a Lien to secure such
Indebtedness pursuant to Section 4.12 hereof, (ii) the gross cash proceeds of
such sale and leaseback transaction are at least equal to the fair market value
(as determined in good faith by the Board of Directors and set forth in an
Officers' Certificate delivered to the Trustee) of the property that is the
subject of such sale and leaseback transaction and (iii) the transfer of assets
in such sale and leaseback transaction is permitted by, and NEHC, to the extent
it receives the proceeds of such transaction, applies the proceeds of such
transaction in compliance with, Section 4.10 hereof.
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SECTION 4.14. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder of Notes will have
the right to require NEHC to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at an offer price in cash equal
to 101% of the Accreted Value thereof on the date of purchase (if such date of
purchase is prior to July 15, 2002) or 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date of purchase (if such date of purchase is after July 15, 2002) (the
"Change of Control Payment")~ Within 30 days following any Change of Control,
NEHC 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 date specified in such notice, which date shall be no earlier than
30 days and no later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date"), pursuant to the procedures required by
Section 3.09 hereof and described in such notice. NEHC shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control.
On the Change of Control Payment Date, NEHC shall, to the extent lawful,
(1) accept for payment all Notes or portions thereof 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
thereof so tendered and (3) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by NEHC. The
Paying Agent will promptly mail to each Holder of Notes so 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; provided that each such new Note will be in a principal amount of $1,000
or an integral multiple thereof.
The Change of Control provisions described above 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 NEHC
repurchase or redeem the Notes in the event of a takeover, recapitalization or
similar transaction.
NEHC shall not be required to make a Change of Control Offer upon a Change
of Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth herein
applicable to a Change of Control Offer made by NEHC and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer.
SECTiON 4.15. CORPORATE EXISTENCE.
Subject to Section 4.14 and Article 5 hereof, as the case may be, NEHC
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and the corporate, partnership or other
existence of each of its Subsidiaries in accordance with the respective
organizational documents (as the same may be amended from time to time) of NEHC
or any such Subsidiary and the rights (charter and statutory), licenses and
franchises of NEHC and its Subsidiaries; provided that NEHC 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 of NEHC shall determine that the preservation thereof is no longer
desirable in the conduct of the business of NEHC 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.
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SECTION 4.16. LIMITATION ON ISSUANCES OF CAPITAL STOCK OF WHOLLY OWNED
RESTRICTED SUBSIDIARIES.
NEHC (i) shall not, and shall not permit any Wholly Owned Restricted
Subsidiary of NEHC to, transfer, convey, sell, lease or otherwise dispose of any
Capital Stock of any Wholly Owned Subsidiary of NEHC to any Person (other than
NEHC or a Wholly Owned Restricted Subsidiary of NEHC), unless (a) such transfer,
conveyance, sale, lease or other disposition is of all the Capital Stock of such
Wholly Owned Restricted Subsidiary and (b) the cash Net Proceeds from such
transfer, conveyance, sale, lease or other disposition are applied in accordance
with Section 4.10 hereof and (ii) will not permit any Wholly Owned Restricted
Subsidiary of NEHC to issue any of its Equity Interests (other than, if
necessary, shares of its Capital Stock constituting directors' qualifying
shares) to any Person other than to NEHC or a Wholly Owned Restricted Subsidiary
of NEHC.
SECTION 4.17 BUSINESS ACTIVITIES.
NEHC shall not, and shall not permit any Restricted Subsidiary to, engage
in any business other than a Permitted Business, except to such extent as would
not be material to NEHC and its Restricted Subsidiaries taken as a whole.
SECTION 4.18. PAYMENT FOR CONSENTS.
Neither NEHC nor any of its Subsidiaries shall, directly or indirectly,
pay or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder of any Notes for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions hereof or the Notes unless
such consideration is offered to be paid or is paid to all Holders of the Notes
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION OF SALE OF ASSETS.
NEHC shall not consolidate or merge with or into (whether or not NEHC is
the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in one
or more related transactions, to another corporation, Person or entity unless
(i) NEHC is the surviving corporation or the entity or the Person formed by or
surviving any such consolidation or merger (if other than NEHC) or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made is a corporation organized or existing under the laws of the United
States, any state thereof or the District of Columbia; (ii) the entity or Person
formed by or surviving any such consolidation or merger (if other than NEHC) or
the entity or Person to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made assumes all the obligations of NEHC
under the Notes and this Indenture; (iii) immediately after such transaction no
Default or Event of Default exists; (iv) except in the case of a merger of NEHC
with or into a Wholly Owned Restricted Subsidiary of NEHC, NEHC or the entity or
Person formed by or surviving any such consolidation or merger (if other than
NEHC), or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made will, at the time of such transaction and after
giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter
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period, be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the
Section 4.09 hereof.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of NEHC in accordance with Section 5.01 hereof, the successor corporation formed
by such consolidation or into or with which NEHC is merged or to which such
sale, assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to NEHC), and shall exercise every right and
power of NEHC under this Indenture with the same effect as if such successor
Person had been named as NEHC herein; provided, that, (i) solely for the
purposes of computing Consolidated Net Income for purposes of clause (b) of the
first paragraph of Section 4.07 hereof, the Consolidated Net Income of any
person other than NEHC and its Subsidiaries shall be included only for periods
subsequent to the effective time of such merger, consolidation, combination or
transfer of assets; and (ii) in the case of any sale, assignment, transfer,
lease, conveyance, or other disposition of less than all of the assets of the
predecessor Company, the predecessor Company shall not be released or discharged
from the obligation to pay the principal of or interest and Liquidated Damages,
if any, on the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT
Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of interest on, or
Liquidated Damages with respect to, the Notes;
(ii) default in payment when due of principal of or premium, if any, on
the Notes;
(iii) failure by NEHC to comply with the provisions described under
Sections 4.10 or 4.14 or Article 5 hereof;
(iv) failure by NEHC for 30 days after notice from the Trustee or at
least 25% in principal amount of the Notes then outstanding to
comply with the provisions described under Sections 4.07 or 4.09
hereof;
(v) failure by NEHC for 60 days after notice from the Trustee or at
least 25% in principal amount of the Notes then outstanding to
comply with any of its other agreement in this Indenture or the
Notes;
(vi) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by NEHC or any of its
Subsidiaries (or the payment of which is guaranteed by NEHC or any
of its Subsidiaries) whether such Indebtedness or Guarantee now
exists, or is created after the date hereof, which default (a) is
caused by a failure to pay principal of or
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premium, if any, or interest on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the
date of such default (a "Payment Default") or (b) results in the
acceleration of such Indebtedness prior to its express maturity
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $15.0 million or more;
(vii) failure by NEHC or any of its Subsidiaries to pay final judgments
aggregating in excess of $50 million, which judgments are not paid,
discharged or stayed for a period of 60 days;
(viii) NEHC or any of its Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole would constitute a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief
against it in an involuntary case,
(c) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become
due; or
(ix) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against NEHC or any of its
Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an
involuntary case;
(b) appoints a Custodian of NEHC or any of its
Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary or for all or
substantially all of the property of the Company
or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary; or
(c) orders the liquidation of NEHC or any of its
Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
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SECTION 6.02. ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Upon such declaration,
the principal of (or, if prior to July 15, 2002, the Accreted Value of),
premium, if any, and accrued and unpaid interest on the Notes shall be due and
payable immediately. Notwithstanding the foregoing, in the case of an Event of
Default as described in clause (viii) or (ix) of Section 6.01 hereof, all
outstanding Notes will become due and payable without further action or notice.
Holders of the Notes may not enforce this Indenture or the Notes except as
provided in this Indenture.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of NEHC with the
intention of avoiding payment of the premium that NEHC would have had to pay if
NEHC then had elected to redeem the Notes pursuant to the optional redemption
provisions of Section 3.07(a) hereof, an equivalent premium shall also become
and be immediately due and payable to the extent permitted by law upon the
acceleration of the Notes. If an Event of Default occurs prior to July 15, 2002
by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of NEHC with the intention of avoiding the prohibition on redemption of
the Notes prior to July 15, 2002, then the amount payable in respect of such
Notes for purposes of this paragraph for each of the twelve-month periods
beginning on July 15 of the years indicated below shall be set forth below,
expressed as percentages of the Accreted Value and Liquidated Damages, if any,
to the date of payment:
Year Percentage
---- ----------
1997 .................................................... 112.375%
1998 .................................................... 111.138%
1999 .................................................... 109.900%
2000 .................................................... 108.663%
2001 .................................................... 107.425%
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any,
interest and Liquidated Damages, 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.
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NEHC is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and NEHC 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.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
this Indenture (including any acceleration (other than an automatic
acceleration) resulting from an Event of Default under clause (viii) or (ix) of
Section 6.01 hereof) except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes (other than as a result
of an acceleration), which shall require the consent of all of the Holders of
the Notes then outstanding.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust power
conferred on it. However, (i) the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve
the Trustee in personal liability, and (ii) the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction. In case an Event of Default shall occur (which shall not be cured),
the Trustee will be required, in the exercise of its power, to use the degree of
care of a prudent man in the conduct of his own affairs. Notwithstanding any
provision to the contrary in this Indenture, the Trustee is under no obligation
to exercise any of its rights or powers under this Indenture at the request of
any Holder of Notes, unless such Holder shall offer to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture or
the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default or the Trustee receives such notice from
NEHC;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision
of indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
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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 right of any
Holder of a Note to receive payment of principal, premium, if any, interest, and
Liquidated Damages, if any, on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against NEHC for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest 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 NEHC (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
securities or property payable or deliverable upon the conversion or exchange of
the Notes or 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 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:
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First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense 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, premium, if any, interest, and Liquidated Damages, if any,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium, if any, interest, and
Liquidated Damages, if any, respectively;
Third: without duplication, to the Holders for any other Obligations
owing to the Holders under this Indenture and the Notes; and
Fourth: to NEHC 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,
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 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 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 of which a
Responsible Officer of the Trustee has knowledge, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture
and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or the TIA and the Trustee
need perform only those duties that are specifically set forth in
this Indenture or the TIA and no others, and no implied covenants
or obligations shall be read into this Indenture against the
Trustee; and
(ii) 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
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requirements of this Indenture. However, the Trustee shall
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:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts;
and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with NEHC. 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) The Trustee may conclusively rely on the truth of the statements and
correctness of the opinions contained in, and shall be protected from
acting or refraining from acting 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
Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
Prior to taking, suffering or admitting any action, the Trustee may
consult with counsel of the Trustee's own choosing and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care.
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(d) The Trustee shall 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.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from NEHC shall be sufficient if signed
by an Officer of NEHC.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner of
Notes and may otherwise deal with NEHC or any Affiliate of NEHC 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 Commission for permission to continue as Trustee or
resign. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall 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 NEHC's use of the proceeds from the Notes or any money paid to
NEHC or upon NEHC's direction under any provision of this Indenture, it shall
not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee, and it shall 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 or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders
of Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment on any
Note pursuant to Section 6.01(i) or (ii) hereof, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the
Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
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
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with TIA section 313(a) (but if no event described in TIA
section 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA
section 313(b). The Trustee shall also transmit by mail all reports as required
by TIA section 313(c).
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A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to NEHC and filed with the Commission and each stock exchange on
which NEHC has informed the Trustee in writing the Notes are listed in
accordance with TIA section 313(d). NEHC shall promptly notify the Trustee when
the Notes are listed on any stock exchange and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
NEHC shall pay to the Trustee from time to time reasonable compensation for
its acceptance of this Indenture and services hereunder. To the extent permitted
by law, the Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. NEHC shall 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 shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents and counsel.
NEHC shall 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 NEHC (including this Section 7.07)
and defending itself against any claim (whether asserted by NEHC or 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 shall notify NEHC promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify NEHC shall not relieve NEHC of its
obligations hereunder. NEHC shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and NEHC shall
pay the reasonable fees and expenses of such counsel. NEHC need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of NEHC under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure NEHC's payment obligations in this Section 7.07, the Trustee
shall 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, interest and
Liquidated Damages, if any, on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01 (viii) or (ix) 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.
The Trustee shall comply with the provisions of TIA section 313(b)(2) to
the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying NEHC. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and NEHC in writing. NEHC may remove the Trustee if:
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(a) the Trustee fails to comply with Section 7.10 hereof;
(b) 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;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, NEHC shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by NEHC.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, NEHC, or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee, after written request by any Holder of a Note who has been
a Holder of a Note for at least six months, fails to comply with Section 7.10
hereof, such Holder of a Note may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to NEHC. Thereupon, the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and the duties of the Trustee under this Indenture.
The successor Trustee shall mail a notice of its succession to the Holders of
the Notes. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, provided that 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, NEHC's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee or any Agent 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 shall be the
successor Trustee or any Agent, as applicable.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall 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. The Trustee and its direct parent shall at all times have a
combined capital surplus of at least $50.0 million as set forth in its most
recent annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA sections 310(a)(l), (2) and (5). The Trustee is subject to TIA section
310(b).
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST NEHC.
The Trustee is subject to TIA section 311(a), excluding any creditor
relationship listed in TIA section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA section 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.
NEHC may, at the option of their respective Boards of Directors evidenced
by a resolution set forth in an Officers' Certificate, 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 NEHC's exercise under Section 8.01 hereof of the option applicable to
this Section 8.02, NEHC shall, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, be deemed to have been discharged from their
respective obligations with respect to all outstanding Notes on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that NEHC shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes, which
shall 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 (a) and (b)
below, and to have satisfied all their respective other obligations under such
Notes and this Indenture (and the Trustee, on demand of and at the expense of
NEHC, shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, premium, if any, and interest and
Liquidated Damages, if any, on such Notes when such payments are due from the
trust referred to in Section 8.04(a); (b) NEHC's obligations with respect to
such Notes under Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10 and 4.02
hereof; (c) the rights, powers, trusts, duties and immunities of the Trustee
including without limitation thereunder Section 7.07, 8.05 and 8.07 hereof and
NEHC's obligations in connection therewith and (d) the provisions of this
Article 8. Subject to compliance with this Article 8, NEHC 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 NEHC's exercise under Section 8.01 hereof of the option applicable to
this Section 8.03, NEHC shall, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, be released from its obligations under the
covenants contained in Sections 3.09, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,
4.13, 4.14, 4.15, 4.16, 4.17 and 5.01 hereof with respect to the outstanding
Notes on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes shall 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 shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, NEHC or any of its
Subsidiaries may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such
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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 shall 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 shall be unaffected thereby. In addition, upon NEHC'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(iii) through (v) hereof shall not constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) NEHC 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 thereof, in such
amounts as shall be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the
principal of, premium and Liquidated Damages, if any, and interest on
the outstanding Notes on the stated maturity or on the applicable
redemption date, as the case may be, and NEHC must specify whether the
Notes are being defeased to maturity or to a particular redemption
date;
(b) in the case of an election under Section 8.02 hereof, NEHC shall have
delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that (A) NEHC has
received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date hereof, there has been a change
in the applicable federal income tax law, in either case to the effect
that, and based thereon such opinion of counsel shall confirm that,
the Holders of the outstanding Notes shall not recognize income, gain
or loss for federal income tax purposes as a result of such Legal
Defeasance and shall 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;
(c) in the case of an election under Section 8.03 hereof, NEHC shall have
delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of
the outstanding Notes shall not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance
and shall 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;
(d) no Default or Event of Default shall have occurred and be 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)
or insofar as Events of Default from bankruptcy or insolvency events
are concerned, at any time in the period ending on the 91st day after
the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under any material
agreement or instrument (other than this
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Indenture) to which NEHC or any of its Subsidiaries is a party or by
which NEHC or any of its Subsidiaries is bound;
(f) NEHC shall have delivered to the Trustee an opinion of counsel to the
effect that after the 91st day following the deposit, the trust funds
shall not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) NEHC shall have delivered to the Trustee an Officers' Certificate
stating that the deposit was not made by NEHC with the intent of
preferring the Holders of Notes over the other creditors of NEHC with
the intent of defeating, hindering, delaying or defrauding creditors
of NEHC or others; and
(h) NEHC shall have delivered to the Trustee an Officers' Certificate and
an opinion of counsel, each stating that all conditions precedent
provided for 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
Securities (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
shall 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 NEHC 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, premium, if any, interest and Liquidated
Damages, if any, but such money need not be segregated from other funds except
to the extent required by law.
NEHC shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable Government
Securities 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.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to NEHC from time to time upon the written request of NEHC
and be relieved of all liability with respect to 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(a) 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.
SECTION 8.06. REPAYMENT TO NEHC.
Any money deposited with the Trustee or any Paying Agent, or then held by
NEHC, in trust for the payment of the principal of, premium, if any, interest or
Liquidated Damages, if any, on any Note and remaining unclaimed for one year
after such principal, and premium, if any, or interest or Liquidated Damages, if
any, has become due and payable shall be paid to NEHC on its written request or
(if then held by NEHC) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to NEHC
for payment thereof, and all liability of the Trustee or
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such Paying Agent with respect to such trust money, and all liability of NEHC as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of NEHC 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 shall not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such
money then remaining shall be repaid to NEHC.
SECTION 8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States dollars
or non-callable Government Securities 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 obligations of NEHC under this Indenture and the Notes
shall 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 NEHC makes any payment
of principal of, premium, if any, interest or Liquidated Damages, if any, on any
Note following the reinstatement of its obligations, NEHC shall 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 THE NOTES.
Notwithstanding Section 9.02 of this Indenture, without the consent of any
Holder of Notes NEHC and the Trustee may amend or supplement this Indenture or
the Notes:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to provide for the assumption of NEHC's obligations to the Holders of
the Notes in the case of a merger, or consolidation pursuant to
Article 5 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect
the legal rights hereunder of any Holder of the Notes; or
(e) to comply with requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the written request of NEHC accompanied by a resolution of its Board
of Directors of NEHC authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, the Trustee shall join with NEHC 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 shall not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
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SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, this Indenture or the Notes
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer, for Notes), and any existing default or compliance with any
provision of this Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes
(including consents obtained in connection with or a tender offer or exchange
offer for the Notes).
Upon the request of NEHC 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 9.06 hereof, the Trustee shall
join with NEHC in the execution of such amended or supplemental indenture unless
such amended or supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may,
but shall not be obligated to, enter into such amended or supplemental
indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof. After an amendment, supplement or waiver under this Section 9.02
becomes effective, NEHC shall mail to the Holders of each Note affected thereby
a notice briefly describing the amendment, supplement or waiver. Any failure of
NEHC to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amended or supplemental indenture or
waiver.
Subject to Sections 6.02, 6.04 and 6.07 hereof, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may amend or waive
compliance in a particular instance by NEHC with any provision of this Indenture
or the Notes. However, without the consent of each Holder affected, an
amendment, or waiver may not (with respect to any Note held by a non-consenting
Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or
alter the provisions with respect to the redemption of the Notes
(other than provisions relating to Sections 3.09, 4.10 and 4.14
hereof);
(c) reduce the rate of or change the time for payment of interest on any
Note;
(d) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the Notes and a waiver of the payment
default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the Notes;
(f) make any change in Section 6.04 or 6.07 hereof;
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(g) waive a redemption or repurchase payment with respect to any Note
(other than a payment required by Section 4.10 or 4.14 hereof); or
(h) make any change in the amendment and waiver provisions of this Article
9.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall 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, a consent to it
by a Holder of a Note is a continuing consent by the Holder 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 or subsequent Holder of a Note may revoke the
consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. When an
amendment, supplement or waiver becomes effective in accordance with its terms,
it thereafter binds every Holder.
NEHC may, but shall not be obligated to, fix a record date for determining
which Holders of the Notes must consent to such amendment, supplement or waiver.
If NEHC fixes a record date, the record date shall be fixed at (i) the later of
30 days prior to the first solicitation of such consent or the date of the most
recent list of Holders of Notes furnished for the Trustee prior to such
solicitation pursuant to Section 2.05 hereof or (ii) such other date as NEHC
shall designate.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. NEHC in exchange for
all Notes may issue and the Trustee shall authenticate new Notes that reflect
the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall 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. NEHC may
not sign an amendment or supplemental indenture until their respective Boards of
Directors approve it. In signing or refusing to sign any amended or supplemental
indenture the Trustee shall be entitled to receive and (subject to Section 7.01
hereof) shall be fully protected in relying upon, in addition to the documents
required by Section 11.04 hereof, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture, that it is not inconsistent herewith,
and that it will be valid and binding upon NEHC in accordance with its terms.
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ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA section 318(c), the imposed duties shall control.
SECTION 10.02. NOTICES.
Any notice or communication by NEHC, the Subsidiary Guarantors or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to NEHC:
Nebco Xxxxx Holding Company
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Secretary
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
If to the Trustee:
State Street Bank and Trust Company
X.X. Xxx 000000
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Department
NEHC 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) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier promising next Business Day delivery.
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Any notice or communication to a Holder shall be mailed by first class mail
or by overnight air courier promising next Business Day delivery to its address
shown on the register kept by the Registrar. Any notice or communication shall
also be so mailed to any Person described in TIA section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other Holders.
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 NEHC mails a notice or communication to Holders, it shall mail a copy to
the Trustee and each Agent at the same time.
SECTION 10.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. NEHC, the
Trustee, the Registrar and anyone else shall have the protection of TIA section
312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by NEHC to the Trustee to take any action
under this Indenture (other than the initial issuance of the Senior Discount
Notes), NEHC shall furnish to the Trustee upon request:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 10.05 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
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 10.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
SECTION 10.05. 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 section 314(a)(4)) shall comply with the provisions of TIA
section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
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(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 10.06. 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 10.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of NEHC, as
such, shall have any liability for any obligations of NEHC or any Subsidiary
Guarantor under the Notes, this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes.
SECTION 10.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES.
SECTION 10.09. No ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of NEHC or its Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.10. SUCCESSORS.
All agreements of NEHC in this Indenture and the Notes shall bind their
respective successors and assigns. All agreements of the Trustee in this
Indenture shall bind its successors and assigns.
SECTION 10.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
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SECTION 10.13. 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 shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
Dated as of July 11, 1997 NEBCO XXXXX HOLDING COMPANY
By: _______________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: _______________________________
Name:
Title:
75
EXHIBIT A
(Face of Senior Discount Note)
12 3/8% Senior Discount Notes due 2007
No. ___ $_____________
CUSIP NO. 000000XX0
NEBCO XXXXX HOLDING COMPANY
promises to pay to ___________________ or registered assigns, the principal sum
of ____________ Dollars on July 15, 2007.
Interest Payment Dates: July 15 and January 15
Record Dates: July 1 and January 1
NEBCO XXXXX HOLDING COMPANY
By: _______________________________
Name:
Title:
This is one of the
Senior Discount Notes referred to in the
within-mentioned Indenture:
Dated: ____________
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: _______________________________
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(Back of Senior Discount Note)
12 3/8% Senior Discount Notes due 2007
[Unless and until it is exchanged in whole or in part for Senior Discount
Notes in definitive form, this Senior Discount 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) ("XXX"), to the issuer 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 in as much as the registered owner hereof, Cede & Co., has an
interest herein.]1
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF NEHC THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE
SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(l), (2), (3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), THAT PRIOR TO SUCH TRANSFER, FURNISHED THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM
OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS THAN $100,000,
AN OPINION OF COUNSEL ACCEPTABLE TO NEHC THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND, IN
THE CASE OF CLAUSE (b), (c), (d) or (e), BASED UPON AN OPINION OF COUNSEL
IF NEHC SO REQUESTS), (2) TO NEHC OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY
OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.]2
--------------------
1. This paragraph should be included only if the Senior Discount Note is issued
in global form.
2. This paragraph should be removed upon the exchange of Senior Discount Notes
for New Senior Discount Notes in the Exchange Offer or upon the registration of
the Senior Discount Notes pursuant to the terms of the Registration Rights
Agreement.
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Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Nebco Xxxxx Holding Company, a Delaware corporation, or its
successor ("NEHC"), promises to pay interest on the principal amount of
this Senior Discount Note at the rate of 12 3/8% per annum and shall pay
the Liquidated Damages, if any, payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. NEHC will pay interest and
Liquidated Damages, if any, in United States dollars (except as otherwise
provided herein) semi-annually in arrears on July 15 and January 15,
commencing on January 15, 2003, or if any such day is not a Business Day,
on the next succeeding Business Day (each an "Interest Payment Date").
Interest on the Senior Discount Notes shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
July 15, 2002; provided that if there is no existing Default or Event of
Default in the payment of interest, and if this Senior Discount Note is
authenticated between a record date referred to on the face hereof and the
next succeeding Interest Payment Date (but after July 15, 2002), interest
shall accrue from such next succeeding Interest Payment Date, except in the
case of the original issuance of Senior Discount Notes, in which case
interest shall accrue from the date of authentication. NEHC shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in
excess of the then applicable interest rate on the Senior Discount Notes to
the extent lawful; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable grace
period) at the same rate to the extent lawful. Interest shall be computed
on the basis of a 360-day year comprised of twelve 30-day months.
2. METHOD OF PAYMENT. NEHC will pay interest on the Senior Discount Notes
(except defaulted interest) and Liquidated Damages, if any, on the
applicable Interest Payment Date to the Persons who are registered Holders
of Senior Discount Notes at the close of business on the July 1 or January
1 next preceding the Interest Payment Date, even if such Senior Discount
Notes are cancelled 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. The Senior Discount Notes shall be payable
as to principal, premium and Liquidated Damages, if any, and interest at
the office or agency of NEHC maintained for such purpose within or without
the City and State of New York, or, at the option of NEHC, payment of
interest and Liquidated Damages, 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 shall be
required with respect to principal of, premium and Liquidated Damages, if
any, and interest on, all Global Notes and all other Senior Discount Notes
the Holders of which shall have provided written wire transfer instructions
to NEHC and the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and Trust Company,
the Trustee under the Indenture, shall act as Paying Agent and Registrar.
NEHC may change any Paying Agent or Registrar without notice to any Holder.
NEHC or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. NEHC issued the Senior Discount Notes under an Indenture dated
as of July 11, 1997 ("Indenture") among NEHC and the Trustee. The terms of
the Senior Discount Notes include those stated in the Indenture and those
made a part of the Indenture by reference to the
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Trust Indenture Act of 1939, as amended (15 U.S. Code sections
77aaa-77bbbb) (the "TIA"). The Senior Discount Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Senior Discount Notes are general unsecured
Obligations of NEHC limited to $100,387,000 in aggregate principal amount,
plus amounts, if any, sufficient to pay premium or Liquidated Damages, if
any, and interest on outstanding Senior Discount Notes as set forth in
Paragraph 2 hereof.
5. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Senior Discount Notes
shall not be redeemable at NEHC's option prior to July 15, 2002.
Thereafter, the Senior Discount Notes shall be subject to redemption at the
option of NEHC, in whole or in part, upon not less than 30 nor more than 60
days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below together with accrued and unpaid interest
and any Liquidated Damages, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on July 15 of
the years indicated below:
Year Percentage
---- ----------
2002 ............................................... 106.188%
2003 ............................................... 104.125%
2004 ............................................... 102.063%
2005 and thereafter ................................ 100.000%
Notwithstanding the foregoing, at any time NEHC may redeem the Senior
Discount Notes, in whole but not in part, at the option of NEHC at a
redemption price of 112.375% of the Accreted Value (determined at the date
of redemption), with the net proceeds of a Public Equity Offering; provided
that such redemption shall occur within 45 days of the date of the closing
of such Public Equity Offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, NEHC shall not be required
to make mandatory redemption or sinking fund payments with respect to the
Senior Discount Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of Senior
Discount Notes will have the right to require NEHC to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of such Holder's
Senior Discount Notes pursuant to the offer described below (the "Change of
Control Offer") at an offer price in cash equal to 101% of the Accreted
Value thereof on the date of purchase (if such date of purchase is prior to
July 15, 2002) or 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, thereon, to the
date of purchase (if such date of purchase is on or after July 15, 2002).
Within 30 days following any Change of Control, NEHC will mail a notice to
each Holder describing the transaction or transactions that constitute the
Change of Control setting forth the procedures governing the Change of
Control Offer required by the Indenture.
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(b) When the aggregate amount of Excess Proceeds exceeds $20.0 million,
NEHC will be required to make an offer to all Holders of Notes (an "Asset
Sale Offer") to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds, at an offer price in cash in an
amount equal to 100% of the Accreted Value thereof on the date of purchase
(if such date of purchase is prior to July 15, 2002) or 100% of the
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of purchase (if such date of purchase
is on or after July 15, 2002), in each case in accordance with the
procedures set forth in the Indenture. To the extent that the aggregate
amount of Notes tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, NEHC may use any remaining Excess Proceeds for general
corporate purposes. If the aggregate principal amount of Notes surrendered
by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes to be purchased on a pro rata basis. Upon completion of
such offer to purchase, the amount of Excess Proceeds shall be reset at
zero.
(c) Holders of the Senior Discount Notes that are the subject of an offer
to purchase will receive a Change of Control Offer or Asset Sale Offer from
NEHC prior to any related purchase date and may elect to have such Senior
Discount Notes purchased by completing the form titled "Option of Holder to
Elect Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least 30 days
but not more than 60 days before the redemption date to each Holder whose
Senior Discount Notes are to be redeemed at its registered address. Senior
Discount Notes in denominations larger than $1,000 may be redeemed in part
but only in whole multiples of $1,000, unless all of the Senior Discount
Notes held by a Holder are to be redeemed. On and after the redemption
date, interest and Liquidated Damages, if any, ceases to accrue on the
Senior Discount Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Discount Notes are in
registered form without coupons in initial denominations of $1,000 and
integral multiples of $1,000. The transfer of the Senior Discount Notes may
be registered and the Senior Discount 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 NEHC may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. NEHC need not exchange or register the transfer
of any Senior Discount Note or portion of a Senior Discount Note selected
for redemption, except for the unredeemed portion of any Senior Discount
Note being redeemed in part. Also, it need not exchange or register the
transfer of any Senior Discount Notes for a period of 15 days before a
selection of Senior Discount 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 Senior Discount Note may
be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following paragraphs, the
Indenture and the Senior Discount Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of
the Senior Discount Notes then outstanding (including, without limitation,
consents obtained in connection with a purchase of or, tender offer or
exchange offer for Senior Discount Notes), and any existing Default or
Event of Default or compliance with any provision of the Indenture or the
Senior Discount Notes may be waived with the consent of the Holders of a
majority in principal amount of the then
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outstanding Senior Discount Notes (including consents obtained in
connection with a tender offer or exchange offer for Senior Discount
Notes).
Without the consent of any Holder of Senior Discount Notes, NEHC and
the Trustee may amend or supplement the Indenture or the Senior Discount
Notes to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Senior Discount Notes in addition to or in place of
certificated Senior Discount Notes, to provide for the assumption of NEHC's
or a Subsidiary Guarantor's obligations to Holders of Senior Discount Notes
in the case of a merger or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of Senior Discount
Notes or that does not adversely affect the legal rights under the
Indenture of any such Holder, to comply with the requirements of the
Commission in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act or to allow any Subsidiary to
guarantee the Senior Discount Notes.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30 days
in the payment when due of interest on or Liquidated Damages, if any, with
respect to the Senior Discount Notes; (ii) default in payment when due of
the principal of or premium, if any, on the Senior Discount Notes; (iii)
failure by NEHC or any Restricted Subsidiary to comply with the provisions
described in Sections 4.10, 4.14 or 5.01 of the Indenture; (iv) failure by
NEHC or any Restricted Subsidiary for 30 days after notice from the Trustee
or at least 25% in principal amount of the Senior Discount Notes to comply
with the provisions described in Sections 4.07 and 4.09, of the Indenture;
(v) failure by NEHC or any Subsidiary for 60 days after notice from the
Trustee or the Holders of at least 25% in principal amount of the Senior
Discount Notes then outstanding to comply with its other agreements in the
Indenture or the Senior Discount Notes; (vi) default under any mortgage,
indenture or instrument under which there may be issued or by which there
may be secured or evidenced any Indebtedness for money borrowed by NEHC or
any of their its Subsidiaries (or the payment of which is guaranteed by
NEHC or any of its Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the date of the Indenture, which default (A)(i)
is caused by a failure to pay when due at final stated maturity (giving
effect to any grace period related thereto) any principal of or premium, if
any, or interest on such Indebtedness (a "Payment Default") or (ii) results
in the acceleration of such Indebtedness prior to its express maturity and
(B) in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $15.0 million or more; (vii) failure by NEHC or any
of its Subsidiaries to pay final judgments aggregating in excess of $5.0
million, which judgments are not paid discharged or stayed within 60 days
after their entry; and (viii) certain events of bankruptcy or insolvency
with respect to NEHC, any of its Significant Subsidiaries or any group of
Subsidiaries that, taken together, would constitute a Significant
Subsidiary.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Senior
Discount Notes may declare all the Senior Discount Notes to be due and
payable immediately provided, however, that if any Indebtedness or
Obligation is outstanding pursuant to the New Credit Facility, upon a
declaration of acceleration by the holders of the Senior Discount Notes or
the Trustee, all principal and interest under the Indenture shall be due
and payable upon the earlier of (x) the day five Business Days after the
provision to NEHC, the Credit Agent and the Trustee of such written notice
of acceleration or (y) the date of acceleration of any Indebtedness under
the New Credit Facility; and provided, further, that in the event of an
acceleration based upon an Event of Default set forth in clause (vi) above,
such declaration of acceleration shall be automatically
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annulled if the holders of Indebtedness which is the subject of such
failure to pay at maturity or acceleration have rescinded their declaration
of acceleration in respect of such Indebtedness or such failure to pay at
maturity shall have been cured or waived within 30 days thereof and no
other Event of Default has occurred during such 30-day period which has not
been cured, paid or waived. Notwithstanding the foregoing, in the case of
an Event of Default arising from certain events of bankruptcy or
insolvency, with respect to NEHC or any of its Significant Subsidiaries all
outstanding Senior Discount Notes will become due and payable without
further action or notice. Holders of the Senior Discount Notes may not
enforce the Indenture or the Senior Discount Notes except as provided in
the Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Senior Discount Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold
from Holders of the Senior Discount 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) if it determines that withholding notice
is in their interest.
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
NEHC, the Subsidiary Guarantors or their respective Affiliates, and may
otherwise deal with NEHC, the Subsidiary Guarantors or their respective
Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or
stockholder, of NEHC or any Subsidiary Guarantor, as such, shall have any
liability for any obligations of NEHC or any Subsidiary Guarantor under the
Senior Discount Notes or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each
Holder of Senior Discount Notes by accepting a Senior Discount Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Discount Notes.
15. AUTHENTICATION. This Senior Discount Note shall 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 TRANSFER RESTRICTED SECURITIES. In addition
to the rights provided to Holders of the Senior Discount Notes under the
Indenture, Holders of Transferred Restricted Securities (as defined in the
Registration Rights Agreement) shall have all the rights set forth in the
Registration Rights Agreement, dated as of the date hereof, among NEHC, the
Subsidiary Guarantors and the Initial Purchaser (the "Registration Rights
Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, NEHC has caused CUSIP numbers
to be printed on the Senior Discount Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to the Holders. No
representation is made as to the accuracy of such numbers either as printed
on the Senior Discount Notes or as contained in any notice of redemption
and reliance may be placed only on the other identification numbers placed
thereon.
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NEHC shall furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Nebco Xxxxx Holding Company
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Chief Financial Officer
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ASSIGNMENT FORM
To assign this Senior Discount Note, fill in the form below: (I) or (we) assign
and transfer this Senior Discount Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Senior Discount Note on the books of NEHC. The agent may
substitute another to act for him.
________________________________________________________________________________
Date: ___________________
Your Signature: ________________________
(Sign exactly as your name appears on
the face of this Senior Discount Note)
Signature Guarantee:
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84
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Discount Note purchased by NEHC
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
[_] Section 4.10 [_] Section 4.14
If you want to elect to have only part of the Senior Discount Note
purchased by NEHC pursuant to Section 4.10 or Section 4.14 of the Indenture,
state the amount you elect to have purchased: $_____________
Date: ___________________ Your Signature: ________________________
(Sign exactly as your name appears on
the Senior Discount Note)
Tax Identification No.: ________________
Signature Guarantee.
X-0-00
00
XXXXXXXX XX XXXXXXXXX OF SENIOR DISCOUNT NOTES(3)
The following exchanges of a part of this Global Note for other Senior Discount
Notes have been made:
------------------------------------------------------------------------------------------------------------------------
Principal Amount of Signature of authorized
Amount of decrease in Amount of increase in this Global Note officer of Trustee or
Principal Amount of Principal Amount of following such decrease Senior Discount Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
------------------------------------------------------------------------------------------------------------------------
-------------------------
3. This should be included only if the Senior Note is issued in global form.
A-1-11
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EXHIBIT A-2
(Face of Regulation S Global Note)
12 3/8% Senior Discount Notes due 2007
No. ___ $_____________
CIN NO. X00000XX0
NEBCO XXXXX HOLDING COMPANY
promises to pay to ___________________ or registered assigns, the principal sum
of _________ Dollars on July 15, 2007.
Interest Payment Dates: July 15 and January 15
Record Dates: July 1 and January 1
NEBCO XXXXX HOLDING COMPANY
By:
--------------------------------
Name:
Title:
This is one of the
Senior Discount Notes referred to in the
within-mentioned Indenture:
Dated: ____________
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
--------------------------------
A-2-1
87
(Back of Regulation S Temporary Global Note)
12 3/8% Senior Discount Note due 2007
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR DISCOUNT
NOTES IN DEFINITIVE FORM, THIS SENIOR DISCOUNT 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 NEHC 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 SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION S OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION S OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF NEHC THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE UNITED STATES
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES
TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE
SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(l), (2), (3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), THAT PRIOR TO SUCH TRANSFER, FURNISHED THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF
WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF
AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO NEHC THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND, IN THE CASE OF CLAUSES
(b), (c), (d) or (e), BASED UPON AN OPINION OF COUNSEL IF NEHC SO REQUESTS), (2)
TO NEHC OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE SENIOR DISCOUNT
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
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NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON
PRIOR TO THE EXCHANGE OF THIS SENIOR DISCOUNT NOTE FOR A REGULATION S TEMPORARY
GLOBAL NOTE AS CONTEMPLATED BY THE INDENTURE.](1)
Until the Regulation S Temporary Global Note is exchanged for Regulation S
Permanent Global Notes, the Holder hereof shall not be entitled to receive
payments of interest or Liquidated Damages, if any, hereon although interest and
Liquidated Damages, if any, will continue to accrue; until so exchanged in full,
the Regulation S Temporary Global Note shall in all other respects be entitled
to the same benefits as other Senior Discount Notes under the Indenture.
The Regulation S Temporary Global Note is exchangeable in whole or in part
for one or more Regulation S Permanent Global Notes or Rule 144A Global Notes
only (i) on or after the termination of the 40-day restricted 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 the Regulation S Temporary Global Note for one or more Regulation S
Permanent Global Notes or Rule 144A Global Notes, the Trustee shall cancel the
Regulation S Temporary Global Note.
The Regulation S Global Note shall not become valid or obligatory until
the certificate of authentication hereon shall have been duly manually signed by
the Trustee in accordance with the Indenture. The Regulation S Global Note shall
be governed by and construed in accordance with the laws of the State of the New
York. All references to "$," "Dollars," "dollars" or "U.S. $" are to such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts therein.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Nebco Xxxxx Holding Company, a Delaware corporation, or
its successor ("NEHC"), promises to pay interest on the principal
amount of this Senior Discount Note at the rate of l2 3/8% per annum
and shall pay the Liquidated Damages, if any, payable pursuant to
Section S of the Registration Rights Agreement referred to below.
NEHC will pay interest and Liquidated Damages, if any, in United
States dollars (except as otherwise provided herein) semi-annually
in arrears on July 15 and January 15, commencing on January 15,
2003, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest
on the Senior Discount Notes shall accrue from the most recent date
to which interest has been paid or, if no interest has been paid,
from July 15, 2002; provided that if there is no existing Default or
Event of Default in the payment of interest, and if this Senior
Discount Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date (but
after July 15, 2002), interest shall accrue from such next
succeeding Interest Payment Date, except in the case of the original
issuance of Senior Discount Notes, in which case interest shall
accrue from the date of authentication. NEHC shall pay interest
(including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 1 % per
annum in excess of the then applicable interest rate on the Senior
Discount Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under
----------
(1) These paragraphs should he removed upon the exchange of Regulation S
Temporary Global Notes for Regulation S Permanent Global Notes pursuant to the
terms of the Indenture.
A-2-3
89
any Bankruptcy Law) on overdue installments of interest and Liquidated
Damages (without regard to any applicable grace period) at the same rate
to the extent lawful. Interest shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
2. METHOD OF PAYMENT. NEHC will pay interest on the Senior Discount
Notes (except defaulted interest) and Liquidated Damages, if any, on
the applicable Interest Payment Date to the Persons who are
registered Holders of Senior Discount Notes at the close of business
on the July 1 or January 1 next preceding the Interest Payment Date,
even if such Senior Discount Notes are cancelled 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.
The Senior Discount Notes shall be payable as to principal, premium
and Liquidated Damages, if any, and interest at the office or agency
of NEHC maintained for such purpose within or without the City and
State of New York, or, at the option of NEHC, payment of interest
and Liquidated Damages, 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 shall be required with respect to principal of, premium and
Liquidated Damages, if any, and interest on, all Global Notes and
all other Senior Discount Notes the Holders of which shall have
provided written wire transfer instructions to NEHC and the Paying
Agent. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and Trust
Company, the Trustee under the Indenture, shall act as Paying Agent
and Registrar. NEHC may change any Paying Agent or Registrar without
notice to any Holder. NEHC or any of its Subsidiaries may act in any
such capacity.
4. INDENTURE. NEHC issued the Senior Discount Notes under an Indenture
dated as of July 11, 1997 ("Indenture") among NEHC and the Trustee.
The terms of the Senior Discount Notes include those stated in the
Indenture and those made a part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code xx.xx.
77aaa-77bbbb) (the "TIA"). The Senior Discount Notes are subject to
all such terms, and Holders are referred to the Indenture and such
Act for a statement of such terms. The Senior Discount Notes are
general unsecured Obligations of NEHC limited to $100,387,000 in
aggregate principal amount, plus amounts, if any, sufficient to pay
premium or Liquidated Damages, if any, and interest on outstanding
Senior Discount Notes as set forth in Paragraph 2 hereof.
5. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Senior Discount
Notes shall not be redeemable at NEHC's option prior to July 15,
2002. Thereafter, the Senior Discount Notes shall be subject to
redemption at the option of NEHC, in whole or in part, upon not less
than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below
together with accrued and unpaid interest and any Liquidated
Damages, if any, thereon to the applicable redemption date,
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90
if redeemed during the twelve-month period beginning on July 15 of
the years indicated below:
Year Percentage
---- ----------
2002 ................................................... 106.188%
2003 ................................................... 104.125%
2004 ................................................... 102.063%
2005 and thereafter .................................... 100.000%
Notwithstanding the foregoing, at any time NEHC may redeem the
Senior Discount Notes, in whole but not in part, at the option of
NEHC at a redemption price of 112.375% of the Accreted Value
(determined at the date of redemption), with the net proceeds of a
Public Equity Offering; provided that such redemption shall occur
within 45 days of the date of the closing of such Public Equity
Offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, NEHC shall not be
required to make mandatory redemption or sinking fund payments with
respect to the Senior Discount Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of
Senior Discount Notes will have the right to require NEHC to
repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Senior Discount Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer
price in cash equal to 101 % of the Accreted Value thereof on the
date of purchase (if such date of purchase is prior to July 15,
2002) or 101 % of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, thereon,
to the date of purchase (if such date of purchase is on or after
July 15,2002). Within 30 days following any Change of Control, NEHC
will mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control setting forth the
procedures governing the Change of Control Offer required by the
Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $20.0
million, NEHC will be required to make an offer to all Holders of
Notes (an "Asset Sale Offer") to purchase the maximum principal
amount of Notes that may be purchased out of the Excess Proceeds, at
an offer price in cash in an amount equal to 100% of the Accreted
Value thereof on the date of purchase (if such date of purchase is
prior to July 15, 2002) or 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date of purchase (if such date of purchase is on or after
July 15, 2002), in each case in accordance with the procedures set
forth in the Indenture. To the extent that the aggregate amount of
Notes tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, NEHC may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of
Notes surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased on a
pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
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(c) Holders of the Senior Discount Notes that are the subject of an
offer to purchase will receive a Change of Control Offer or Asset
Sale Offer from NEHC prior to any related purchase date and may
elect to have such Senior Discount Notes purchased by completing the
form titled "Option of Holder to Elect Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption
date to each Holder whose Senior Discount Notes are to be
redeemed at its registered address. Senior Discount Notes in
denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000, unless all of the Senior
Discount Notes held by a Holder are to be redeemed. On and
after the redemption date, interest and Liquidated Damages, if
any, ceases to accrue on the Senior Discount Notes or portions
thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Discount Notes
are in registered form without coupons in initial
denominations of $1,000 and integral multiples of $1,000. The
transfer of the Senior Discount Notes may be registered and
the Senior Discount 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 NEHC may require a Holder to pay any
taxes and fees required by law or permitted by the Indenture.
NEHC need not exchange or register the transfer of any Senior
Discount Note or portion of a Senior Discount Note selected
for redemption, except for the unredeemed portion of any
Senior Discount Note being redeemed in part. Also, it need not
exchange or register the transfer of any Senior Discount Notes
for a period of 15 days before a selection of Senior Discount
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 Senior
Discount Note may be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture and the Senior Discount Notes may be
amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Senior Discount
Notes then outstanding (including, without limitation,
consents obtained in connection with a purchase of or, tender
offer or exchange offer for Senior Discount Notes), and any
existing Default or Event of Default or compliance with any
provision of the Indenture or the Senior Discount Notes may be
waived with the consent of the Holders of a majority in
principal amount of the then outstanding Senior Discount Notes
(including consents obtained in connection with a tender offer
or exchange offer for Senior Discount Notes).
Without the consent of any Holder of Senior Discount
Notes, NEHC and the Trustee may amend or supplement the
Indenture or the Senior Discount Notes to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Senior
Discount Notes in addition to or in place of certificated
Senior Discount Notes, to provide for the assumption of NEHC's
or a Subsidiary Guarantor's obligations to Holders of Senior
Discount Notes in the case of a merger or consolidation, to
make any change that would provide any additional rights or
benefits to the Holders of Senior Discount Notes or that does
not adversely affect the legal rights under the Indenture of
any such Holder, to comply with the requirements of the
Commission in order to effect or maintain the qualification of
the Indenture under the Trust Indenture Act or to allow any
Subsidiary to guarantee the Senior Discount Notes.
X-0-0
00
00. DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on or
Liquidated Damages, if any, with respect to the Senior
Discount Notes; (ii) default in payment when due of the
principal of or premium, if any, on the Senior Discount Notes;
(iii) failure by NEHC or any Restricted Subsidiary to comply
with the provisions described in Sections 4.10, 4.14 or 5.01
of the Indenture; (iv) failure by NEHC or any Restricted
Subsidiary for 30 days after notice from the Trustee or at
least 25% in principal amount of the Senior Discount Notes to
comply with the provisions described in Sections 4.07 and
4.09, of the Indenture; (v) failure by NEHC or any Subsidiary
for 60 days after notice from the Trustee or the Holders of at
least 25% in principal amount of the Senior Discount Notes
then outstanding to comply with its other agreements in the
Indenture or the Senior Discount Notes; (vi) default under any
mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by NEHC or any of their its
Subsidiaries (or the payment of which is guaranteed by NEHC or
any of its Subsidiaries) whether such Indebtedness or
guarantee now exists, or is created after the date of the
Indenture, which default (A) (i) is caused by a failure to pay
when due at final stated maturity (giving effect to any grace
period related thereto) any principal of or premium, if any,
or interest on such Indebtedness (a "Payment Default") or (ii)
results in the acceleration of such Indebtedness prior to its
express maturity and (B) in each case, the principal amount of
any such Indebtedness, together with the principal amount of
any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so
accelerated, aggregates $15.0 million or more; (vii) failure
by NEHC or any of its Subsidiaries to pay final judgments
aggregating in excess of $5.0 million, which judgments are not
paid discharged or stayed within 60 days after their entry;
and (viii) certain events of bankruptcy or insolvency with
respect to NEHC, any of its Significant Subsidiaries or any
group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary.
If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25 % in principal amount of
the then outstanding Senior Discount Notes may declare all the
Senior Discount Notes to be due and payable immediately
provided, however, that if any Indebtedness or Obligation is
outstanding pursuant to the New Credit Facility, upon a
declaration of acceleration by the holders of the Senior
Discount Notes or the Trustee, all principal and interest
under the Indenture shall be due and payable upon the earlier
of (x) the day five Business Days after the provision to NEHC,
the Credit Agent and the Trustee of such written notice of
acceleration or (y) the date of acceleration of any
Indebtedness under the New Credit Facility; and provided,
further, that in the event of an acceleration based upon an
Event of Default set forth in clause (vi) above, such
declaration of acceleration shall be automatically annulled if
the holders of Indebtedness which is the subject of such
failure to pay at maturity or acceleration have rescinded
their declaration of acceleration in respect of such
Indebtedness or such failure to pay at maturity shall have
been cured or waived within 30 days thereof and no other Event
of Default has occurred during such 30-day period which has
not been cured, paid or waived. Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events
of bankruptcy or insolvency, with respect to NEHC or any of
its Significant Subsidiaries all outstanding Senior Discount
Notes will become due and payable without further action or
notice. Holders of the Senior Discount Notes may not enforce
the Indenture or the Senior Discount Notes except as provided
in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Senior
Discount Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the
Senior Discount 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) if it
determines that withholding notice is in their interest.
X-0-0
00
00. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits
from, and perform services for NEHC, the Subsidiary Guarantors
or their respective Affiliates, and may otherwise deal with
NEHC, the Subsidiary Guarantors or their respective
Affiliates, as if it were not the Trustee.
14. No RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder, of NEHC or any Subsidiary
Guarantor, as such, shall have any liability for any
obligations of NEHC or any Subsidiary Guarantor under the
Senior Discount Notes or the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Senior Discount Notes by accepting a
Senior Discount Note waives and releases all such liability.
The waiver and release are part of the consideration for the
issuance of the Senior Discount Notes.
15. AUTHENTICATION. This Senior Discount Note shall 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 TRANSFER RESTRICTED
SECURITIES. In addition to the rights provided to Holders of
the Senior Discount Notes under the Indenture, Holders of
Transferred Restricted Securities (as defined in the
Registration Rights Agreement) shall have all the rights set
forth in the Registration Rights Agreement, dated as of the
date hereof, among NEHC, the Subsidiary Guarantors and the
Initial Purchaser (the "Registration Rights Agreement").
18. CIN NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, NEHC
has caused CIN numbers to be printed on the Senior Discount
Notes and the Trustee may use CIN numbers in notices of
redemption as a convenience to the Holders. No representation
is made as to the accuracy of such numbers either as printed
on the Senior Discount Notes or as contained in any notice of
redemption and reliance may be placed only on the other
identification numbers placed thereon.
NEHC shall furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the
Registration Rights Agreement. Requests may be made to:
Nebco Xxxxx Holding Company
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Chief Financial Officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Discount Note purchased by NEHC
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
|_| Section 4.10 |_| Section 4.14
If you want to elect to have only part of the Senior Discount Note
purchased by NEHC pursuant to Section 4.10 or Section 4.14 of the Indenture,
state the amount you elect to have purchased:
$______________
Date:____________________ Your Signature:
-------------------------------
(Sign exactly as your name appears on the Senior
Discount Note)
Tax Identification No.:_____________
Signature Guarantee.
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SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of this Regulation S Global Note for
other Global Notes have been made:
-----------------------------------------------------------------------------------------------------------------------
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Senior Discount
Date of Exchange this Global Note this Global Note (or increase) Note Custodian
-----------------------------------------------------------------------------------------------------------------------
X-0-00
00
XXXXXXX X-0
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.06(a)(1) of the Indenture)
State Street Bank and Trust Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Re: 12 3/8% Senior Discount Notes due 2007 of Nebco Xxxxx Holding Company
Reference is hereby made to the Indenture, dated as of July 15, 1997 (the
"Indenture"), between Nebco Xxxxx Holding Company, a Delaware corporation (the
"NEHC") and State Street Bank and Trust Company, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $ __________________ principal amount of Senior
Discount Notes which are evidenced by one or more Rule 144A Global Notes and
held with the Depositary in the name of ___________________ (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Senior Discount Notes to a Person who will take delivery thereof in the form of
an equal principal amount of Senior Discount Notes evidenced by one or more
Regulation S Global Notes, which amount, immediately after such transfer, is to
be held with the Depositary through Euroclear or Cedel or both.
In connection with such request and in respect of such Senior Discount
Notes, the Transferor hereby certifies that such transfer has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(1) The offer of the Senior Discount Notes was not made to a person in
the United States;
(2) either:
(a) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed and believes that the
transferee was outside the United States; or
(b) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States;
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(3) no directed selling efforts have been made in contravention of the
requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration provisions of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary
through Euroclear or Cedel or both.
Upon giving effect to this request to exchange a beneficial interest in a
Rule 144A Global Note for a beneficial interest in a Regulation S Global Note,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Regulation S Global Notes pursuant to the Indenture and
the Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Senior Discount Notes,
the additional restrictions applicable to transfers of interest in the
Regulation S Temporary Global Note.
This certificate and the statements contained herein are made for your
benefit and the benefit of NEHC and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, the initial purchaser of such Senior Discount Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated:
cc: Nebco Xxxxx Holding Company
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
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EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii) of the Indenture)
State Street Bank and Trust Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Re: 12 3/8% Senior Discount Notes due 2007 of Nebco Xxxxx Holding Company
Reference is hereby made to the Indenture, dated as of July 11, 1997 (the
"Indenture"), between Nebco Xxxxx Holding Company, a Delaware corporation (the
"NEHC") and State Street Bank and Trust Company, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $___________ principal amount of Senior Discount
Notes which are evidenced by one or more Regulation S Global Notes and held with
the Depositary through Euroclear or Cedel in the name of ________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Senior Discount Notes to a Person who will take delivery thereof
in the form of an equal principal amount of Senior Discount Notes evidenced by
one or more Rule 144A Global Notes, to be held with the Depositary.
In connection with such request and in respect of such Senior Discount
Notes, the Transferor hereby certifies that:
[CHECK ONE]
|_| such transfer is being effected pursuant to and in accordance with Rule
l44A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Senior Discount Notes are being transferred to a Person
that the Transferor reasonably believes is purchasing the Senior Discount
Notes 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;
or
|_| such transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;
or
|_| such transfer is being effected pursuant to an exemption under the
Securities Act other than Rule 144A, Rule 144 or Rule 904 and the
Transferor further certifies that the Transfer complies with the
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transfer restrictions applicable to beneficial interests in Global Notes
and Definitive Senior Discount Notes bearing the Private Placement Legend
and the requirements of the exemption claimed, which certification is
supported by (x) if such transfer is in respect of a principal amount of
Senior Discount Notes at the time of Transfer of $100,000 or more, a
certificate executed by the Transferee in the form of EXHIBIT C to the
Indenture, or (y) if such Transfer is in respect of a principal amount of
Senior Discount Notes at the time of transfer of less than $100,000, (1) a
certificate executed in the form of EXHIBIT C 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 (1) such Transfer is in compliance with the Securities Act and (2)
such Transfer complies with any applicable blue sky securities laws of any
state of the United States;
or
|_| such transfer is being effected pursuant to an effective registration
statement under the Securities Act; or
|_| such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Discount Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the transferor or the transferee (a
copy of which the Transferor has attached to this certification) in form
reasonably acceptable to NEHC and to the Registrar, to the effect that
such transfer is in compliance with the Securities Act;
and such Senior Discount Notes are being transferred in compliance with
any applicable blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Notes for a beneficial interest in 144A Global Senior
Discount Notes, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Rule 144A Global Notes pursuant to the
Indenture and the Securities Act.
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This certificate and the statements contained herein are made for your
benefit and the benefit of NEHC and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, the initial purchaser of such Senior Discount Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated:
cc: Nebco Xxxxx Holding Company
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
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EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE SENIOR SUBORDINATED NOTES
(Pursuant to Section 2.06(b) of the Indenture)
State Street Bank and Trust Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Re: 12 3/8% Senior Discount Notes due 2007 Nebco Xxxxx Holding Company
Reference is hereby made to the Indenture, dated as of July 11, 1997 (the
"Indenture"), between Nebco Xxxxx Holding Company, a Delaware corporation (the
"NEHC") and State Street Bank and Trust Company, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This relates to $ ________ principal amount of Senior Discount Notes which
are evidenced by one or more Definitive Senior Discount Notes in the name of
______________ (the "Transferor"). The Transferor has requested an exchange or
transfer of such Definitive Senior Discount Note(s) in the form of an equal
principal amount of Senior Discount Notes evidenced by one or more Definitive
Senior Discount Notes, to be delivered to the Transferor or, in the case of a
transfer of such Senior Discount Notes, to such Person as the Transferor
instructs the Trustee.
In connection with such request and in respect of the Senior Discount
Notes surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Discount Notes"), the Holder of such Surrendered Senior Discount Notes hereby
certifies that:
[CHECK ONE]
|_| the Surrendered Senior Discount Notes are being acquired for the
Transferor's own account, without transfer;
or
|_| the Surrendered Senior Discount Notes are being transferred to NEHC;
or
|_| the Surrendered Senior Discount Notes are being transferred pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the Surrendered Senior Discount Notes are
being transferred to a Person that the Transferor reasonably believes is
purchasing the Surrendered Senior Discount Notes 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
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such account is a "qualified institutional buyer" within the meaning of
Rule 144A, in each case in a transaction meeting the requirements of Rule
144A;
or
|_| the Surrendered Senior Discount Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
|_| the Surrendered Senior Discount Notes are being transferred pursuant to an
exemption under the Securities Act other than Rule 144A, Rule 144 or Rule
904 and the Transferor further certifies that the Transfer complies with
the transfer restrictions applicable to beneficial interests in Global
Notes and Definitive Senior Discount Notes bearing the Private Placement
Legend and the requirements of the exemption claimed, which certification
is supported by (x) if such transfer is in respect of a principal amount
of Senior Discount Notes at the time of Transfer of $100,000 or more, a
certificate executed by the Transferee in the form of EXHIBIT C to the
Indenture, or (y) if such Transfer is in respect of a principal amount of
Senior Discount Notes at the time of transfer of less than $100,000, (1) a
certificate executed in the form of EXHIBIT C 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 (1) such Transfer is in compliance with the Securities Act and (2)
such Transfer complies with any applicable blue sky securities laws of any
state of the United States;
or
|_| the Surrendered Senior Discount Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
|_| such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Discount Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the transferor or the transferee (a
copy of which the Transferor has attached to this certification) in form
reasonably acceptable to NEHC and to the Registrar, to the effect that
such transfer is in compliance with the Securities Act;
and the Surrendered Senior Discount Notes are being transferred in
compliance with any applicable blue sky securities laws of any state of
the United States.
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This certificate and the statements contained herein are made for your
benefit and the benefit of NEHC and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, the initial purchaser of such Senior Discount Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated:
cc: Nebco Xxxxx Holding Company
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
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EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR REGULATION S
PERMANENT GLOBAL NOTE
TO DEFINITIVE SENIOR SUBORDINATED NOTE
(Pursuant to Section 2.06(c) of the Indenture)
State Street Bank and Trust Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Re: 12 3/8% Senior Discount Notes due 2007 Nebco Xxxxx Holding Company
Reference is hereby made to the Indenture, dated as of July 11, 1997
(the "Indenture"), between Nebco Xxxxx Holding Company, a Delaware corporation
(the "NEHC") and State Street Bank and Trust Company, as trustee (the
"Trustee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to $____________ principal amount of Senior Discount
Notes which are evidenced by a beneficial interest in one or more Rule 144A
Global Notes or Regulation S Permanent Global Notes in the name of
_________________ (the "Transferor"). The Transferor has requested an exchange
or transfer of such beneficial interest in the form of an equal principal amount
of Senior Discount Notes evidenced by one or more Definitive Senior Discount
Notes, to be delivered to the Transferor or, in the case of a transfer of such
Senior Discount Notes, to such Person as the Transferor instructs the Trustee.
In connection with such request and in respect of the Senior Discount
Notes surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Discount Notes"), the Holder of such Surrendered Senior Discount Notes hereby
certifies that:
[CHECK ONE]
|_| the Surrendered Senior Discount Notes are being transferred to the
beneficial owner of such Senior Discount Notes;
or
|_| the Surrendered Senior Discount Notes are being transferred pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the Surrendered Senior Discount Notes are
being transferred to a Person that the Transferor reasonably believes is
purchasing the Surrendered Senior Discount Notes 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 each
case in a transaction meeting they requirements of Rule 144A;
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or
|_| the Surrendered Senior Discount Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
|_| the Surrendered Senior Discount Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
|_| the Surrendered Senior Discount Notes are being transferred pursuant to an
exemption under the Securities Act other than Rule 144A, Rule 144 or Rule
904 and the Transferor further certifies that the Transfer complies with
the transfer restrictions applicable to beneficial interests in Global
Notes and Definitive Senior Discount Notes bearing the Private Placement
Legend and the requirements of the exemption claimed, which certification
is supported by (x) if such transfer is in respect of a principal amount
of Senior Discount Notes at the time of Transfer of $100,000 or more, a
certificate executed by the Transferee in the form of EXHIBIT C to the
Indenture, or (y) if such Transfer is in respect of a principal amount of
Senior Discount Notes at the time of transfer of less than $100,000, (1) a
certificate executed in the form of EXHIBIT C 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 (1) such Transfer is in compliance with the Securities Act and (2)
such Transfer complies with any applicable blue sky securities laws of any
state of the United States;
or
|_| such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Discount Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the transferor or the transferee (a
copy of which the Transferor has attached to this certification) in form
reasonably acceptable to NEHC and to the Registrar, to the effect that
such transfer is in compliance with the Securities Act;
and the Surrendered Senior Discount Notes are being transferred in compliance
with any applicable blue sky securities laws of any state of the United States.
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This certificate and the statements contained herein are made for your
benefit and the benefit of NEHC and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, the initial purchaser of such Senior Discount Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated:
cc: Nebco Xxxxx Holding Company
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
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EXHIBIT C
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
State Street Bank and Trust Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Re: 12 3/8% Senior Discount Notes due 2007 Nebco Xxxxx Holding Company
Reference is hereby made to the Indenture, dated as of July 11, 1997 (the
"Indenture"), between Nebco Xxxxx Holding Company, a Delaware corporation (the
"NEHC") and State Street Bank and Trust Company, as trustee (the "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) |_| Beneficial interests, or
(b) |_| Definitive Senior Discount Notes,
we confirm that:
1. We understand that any subsequent transfer of the Senior Discount
Notes of 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 Senior Discount 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 Senior Discount
Notes have not been registered under the Securities Act, and that the Senior
Discount 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 Senior Discount Notes or any interest therein, (A) we will do so only
(1)(a) to a person who the Seller reasonably believes is a qualified
institutional buyer (as defined in Rule 144A under the Securities Act) in a
transaction meeting the requirements of 144A, (b) in a transaction meeting the
requirements of Rule 144 under the Securities Act, (c) outside the United States
to a foreign person in a transaction meeting the requirements of Rule 904 of the
Securities Act, or (d) in accordance with another exemption from the
registration requirements of the Securities Act (and based upon an opinion of
counsel), (2) to NEHC or any of its subsidiaries or (3) pursuant to an effective
registration statement and, in each case, in accordance with any applicable
securities laws of any State of the United States or any other applicable
jurisdiction and (B) we will, and each subsequent holder will be required to,
notify any purchaser from it of the security evidenced hereby of the resale
restrictions set forth in (A) above."
X-0
000
0. We understand that, on any proposed resale of the Senior Discount
Notes or beneficial interests, we will be required to furnish to you and NEHC
such certifications, legal opinions and other information as you and NEHC may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Senior Discount Notes purchased by
us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
50l(a)(l), (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 Senior Discount
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 Senior Discount Notes or beneficial
interests 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.
6. We are not acquiring the Senior Discount Notes with a view to any
distribution thereof that would violate the Securities Act or the securities
laws of any State of the United States.
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You and NEHC are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
------------------------------------
[Insert Name of Accredited Investor]
By:
---------------------------------
Name:
Title:
Dated:_____________, ____
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SIGNATURES
Dated as of July 11, 1997 NEBCO XXXXX HOLDING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
STATE STREET BANK AND TRUST COMPANY
,
as Trustee
By:
--------------------------------
Name:
Title:
111
SIGNATURES
Dated as of July 11, 1997 NEBCO XXXXX HOLDING COMPANY
By:
---------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
as Trustee
By: /s/ X.X. Xxxxx
--------------------------------
Name: X.X. Xxxxx
Title: Vice President
