Exhibit 4.3
COTT BEVERAGES INC.,
as Issuer
COTT CORPORATION
COTT HOLDINGS INC.
COTT USA CORP.
COTT VENDING INC.
INTERIM BCB, LLC
CONCORD HOLDING GP INC.
CONCORD HOLDING LP INC.
CONCORD BEVERAGE LP
and
Each Newly Acquired or
Created Domestic Restricted Subsidiary
Of Cott Corporation, as
Guarantors
8% SENIOR SUBORDINATED NOTES DUE 2011
INDENTURE
Dated as of December 21, 2001
HSBC BANK USA, as
Trustee
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE ............................... 1
SECTION 1.1. Definitions ..................................................... 1
SECTION 1.2. Other Definitions ............................................... 18
SECTION 1.3. Incorporation by Reference of Trust Indenture Act ............... 19
SECTION 1.4. Rules of Construction ........................................... 19
SECTION 1.5. One Class Of Securities ......................................... 20
ARTICLE II THE NOTES ............................................................... 20
SECTION 2.1. Form and Dating ................................................. 20
SECTION 2.2. Execution and Authentication .................................... 21
SECTION 2.3. Registrar and Paying Agent ...................................... 22
SECTION 2.4. Paying Agent to Hold Money in Trust ............................. 22
SECTION 2.5. Holder Lists .................................................... 23
SECTION 2.6. Transfer And Exchange ........................................... 23
SECTION 2.7. Replacement Notes ............................................... 36
SECTION 2.8. Outstanding Notes ............................................... 36
SECTION 2.9. Treasury Notes .................................................. 36
SECTION 2.10. Temporary Notes ................................................ 37
SECTION 2.11. Cancellation ................................................... 37
SECTION 2.12. Defaulted Interest ............................................. 37
SECTION 2.13. CUSIP Numbers .................................................. 37
ARTICLE III REDEMPTION AND PREPAYMENT .............................................. 38
SECTION 3.1. Notices To Trustee .............................................. 38
SECTION 3.2. Selection of Notes to be Redeemed ............................... 38
SECTION 3.3. Notice of Redemption ............................................ 38
SECTION 3.4. Effect of Notice of Redemption .................................. 39
SECTION 3.5. Deposit of Redemption Price ..................................... 39
SECTION 3.6. Notes Redeemed in Part .......................................... 40
SECTION 3.7. Optional Redemption ............................................. 40
SECTION 3.8. Mandatory Redemption ............................................ 41
SECTION 3.9. Offer to Purchase by Application of Excess Proceeds. ............ 41
ARTICLE IV COVENANTS ............................................................... 42
SECTION 4.1. Payment of Notes ................................................ 42
SECTION 4.2. Maintenance of Office or Agency ................................. 43
SECTION 4.3. Reports ......................................................... 43
SECTION 4.4. Compliance Certificate .......................................... 44
SECTION 4.5. Taxes ........................................................... 45
SECTION 4.6. Stay, Extension and Usury Laws .................................. 45
SECTION 4.7. Restricted Payments ............................................. 45
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SECTION 4.8. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries .................................................. 48
SECTION 4.9. Incurrence of Indebtedness and Issuance of Preferred Stock ...... 50
SECTION 4.10. Asset Sales .................................................... 52
SECTION 4.11. Transactions With Affiliates ................................... 53
SECTION 4.12. Liens .......................................................... 54
SECTION 4.13. Business Activities ............................................ 54
SECTION 4.14. Corporate Existence ............................................ 54
SECTION 4.15. Offer to Repurchase Upon Change of Control Triggering Event .... 55
SECTION 4.16. No Senior Subordinated Debt .................................... 56
SECTION 4.17. Additional Subsidiary Guarantees ............................... 56
SECTION 4.18. Payments for Consent ........................................... 56
SECTION 4.19. Sale and Leaseback Transactions ................................ 56
ARTICLE V SUCCESSORS ............................................................... 57
SECTION 5.1. Merger, Consolidation, or Sale or Lease of Assets ............... 57
SECTION 5.2. Successor Corporation Substituted ............................... 58
ARTICLE VI EVENTS OF DEFAULT ....................................................... 58
SECTION 6.1. Events of Default ............................................... 58
SECTION 6.2. Acceleration .................................................... 60
SECTION 6.3. Other Remedies .................................................. 61
SECTION 6.4. Waiver of Past Defaults ......................................... 61
SECTION 6.5. Control by Majority ............................................. 62
SECTION 6.6. Limitation on Suits ............................................. 62
SECTION 6.7. Rights of Holders of Notes to Receive Payment ................... 62
SECTION 6.8. Collection Suit By Trustee ...................................... 62
SECTION 6.9. Trustee May File Proofs of Claim ................................ 63
SECTION 6.10. Priorities ..................................................... 63
SECTION 6.11. Undertaking for Costs .......................................... 64
ARTICLE VII TRUSTEE ................................................................ 64
SECTION 7.1. Duties of Trustee ............................................... 64
SECTION 7.2. Rights of Trustee ............................................... 65
SECTION 7.3. Individual Rights of Trustee .................................... 66
SECTION 7.4. Trustee's Disclaimer ............................................ 66
SECTION 7.5. Notice of Defaults .............................................. 66
SECTION 7.6. Reports by Trustee to Holders of The Notes ...................... 67
SECTION 7.7. Compensation and Indemnity ...................................... 67
SECTION 7.8. Replacement of Trustee .......................................... 68
SECTION 7.9. Successor Trustee by Merger, etc. ............................... 69
SECTION 7.10. Eligibility; Disqualification .................................. 69
SECTION 7.11. Preferential Collection of Claims Against Issuer ............... 69
SECTION 7.12. Other Capacities ............................................... 69
ARTICLE VIII DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE ................... 70
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SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance;
Discharge ....................................................... 70
SECTION 8.2. Legal Defeasance and Discharge .................................. 71
SECTION 8.3. Covenant Defeasance ............................................. 71
SECTION 8.4. Conditions to Legal or Covenant Defeasance ...................... 72
SECTION 8.5. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions .................................. 73
SECTION 8.6. Repayment to Issuer ............................................. 74
SECTION 8.7. Reinstatement ................................................... 74
ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER ........................................ 74
SECTION 9.1. Without Consent of Holders of Notes ............................. 74
SECTION 9.2. With Consent of Holders of Notes ................................ 75
SECTION 9.3. Compliance With Trust Indenture Act ............................. 77
SECTION 9.4. Revocation and Effect of Consents ............................... 77
SECTION 9.5. Notation on or Exchange of Notes ................................ 77
SECTION 9.6. Trustee to Sign Amendments, etc. ................................ 77
ARTICLE X SUBORDINATION ............................................................ 78
SECTION 10.1. Agreement to Subordinate ....................................... 78
SECTION 10.2. Certain Definitions ............................................ 78
SECTION 10.3. Liquidation; Dissolution; Bankruptcy ........................... 78
SECTION 10.4. Default on Designated Senior Debt .............................. 78
SECTION 10.5. Acceleration of Securities ..................................... 79
SECTION 10.6. When Distribution Must Be Paid Over ............................ 79
SECTION 10.7. Notice by Issuer ............................................... 80
SECTION 10.8. Subrogation .................................................... 80
SECTION 10.9. Relative Rights ................................................ 80
SECTION 10.10. Subordination May Not Be Impaired by Issuer Or Guarantors ..... 81
SECTION 10.11. Distribution or Notice to Representative ...................... 81
SECTION 10.12. Article X Not To Prevent Events of Default or Limit Right
To Accelerate ................................................. 81
SECTION 10.13. Rights of Trustee and Paying Agent ............................ 81
SECTION 10.14. Authorization to Effect Subordination ......................... 82
SECTION 10.15. Amendments .................................................... 82
SECTION 10.16. Trustee's Compensation Not Prejudiced ......................... 82
ARTICLE XI GUARANTEEs .............................................................. 82
SECTION 11.1. Unconditional Guarantees ....................................... 82
SECTION 11.2. Severability ................................................... 83
SECTION 11.3. Limitation of Guarantor's Liability ............................ 83
SECTION 11.4. Contribution ................................................... 83
SECTION 11.5. Additional Subsidiary Guarantees ............................... 83
SECTION 11.6. Subordination of Subrogation and Other Rights .................. 84
SECTION 11.7. Additional Amounts ............................................. 84
ARTICLE XII SUBORDINATION OF GUARANTEEs ............................................ 84
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SECTION 12.1. Agreement to Subordinate. ...................................... 84
SECTION 12.2. Certain Definitions ............................................ 85
SECTION 12.3. Liquidation; Dissolution; Bankruptcy ........................... 85
SECTION 12.4. Default on Designated Senior Debt .............................. 85
SECTION 12.5. Acceleration of Securities ..................................... 86
SECTION 12.6. When Distribution Must Be Paid Over ............................ 86
SECTION 12.7. Notice by the Guarantors ....................................... 87
SECTION 12.8. Subrogation .................................................... 87
SECTION 12.9. Relative Rights ................................................ 87
SECTION 12.10. Subordination May Not Be Impaired by Guarantors ............... 87
SECTION 12.11. Distribution or Notice to Representative ...................... 88
SECTION 12.12. Article XII Not To Prevent Events of Default or Limit Right
To Accelerate ................................................. 88
SECTION 12.13. Rights of Trustee and Paying Agent ............................ 88
SECTION 12.14. Authorization to Effect Subordination ......................... 88
SECTION 12.15. Amendments .................................................... 89
SECTION 12.16. Trustee's Compensation Not Prejudiced ......................... 89
ARTICLE XIII MISCELLANEOUS ......................................................... 89
SECTION 13.1. Trust Indenture Act Controls ................................... 89
SECTION 13.2. Notices ........................................................ 89
SECTION 13.3. Communication by Holders of Notes With Other Holders Of Notes .. 90
SECTION 13.4. Certificate and Opinion as to Conditions Precedent ............. 90
SECTION 13.5. Statements Required in Certificate or Opinion .................. 91
SECTION 13.6. Rules by Trustee and Agents .................................... 91
SECTION 13.7. No Personal Liability of Directors, Officers, Employees and
Shareholders .................................................. 91
SECTION 13.8. Governing Law .................................................. 91
SECTION 13.9. Submission to Jurisdiction; Waiver of Immunities ............... 92
SECTION 13.10. Conversion of Currency ........................................ 92
SECTION 13.11. Currency Equivalent ........................................... 93
SECTION 13.12. Severability .................................................. 93
SECTION 13.13. Counterpart Originals ......................................... 93
SECTION 13.14. Table of Contents, Headings, Etc. ............................. 93
EXHIBITS
A-1 Form of Global Note
A-2 Form of Regulation S Temporary Global Note
B Form of Certificate of Transfer
C Form of Certificate of Exchange
D Form of Supplemental Indenture
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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
(i)(b).................................................. 7.10
(ii)(c)................................................. N.A.
311(a)..................................................... 7.11
(b)..................................................... 7.11
(iii)(c)................................................ N.A.
312(a)..................................................... 2.5
(b)(5).................................................. 13.3
(iv)(c)................................................. 13.3
313(a)..................................................... 7.6
(b)(1).................................................. 10.3
(b)(2).................................................. 7.7
(v)(c).................................................. 7.6
13.2
(v)(d).................................................. 7.6
314(a)..................................................... 4.3
13.2
(c)(1).................................................. 13.4
(c)(2).................................................. 13.4
(c)(3).................................................. N.A.
(vi)(e)................................................. 13.5
(f)..................................................... N.A.
315(a)..................................................... 7.1
(b)..................................................... 7.5
13.2
(B)(c).................................................. 7.1
(d)..................................................... 7.1
(e)..................................................... 6.11
316(a)(last sentence)...................................... 2.9
(a)(1)(A)............................................... 6.5
(a)(1)(B)............................................... 6.4
(a)(2).................................................. N.A.
(b)..................................................... 6.7
(C)(c).................................................. 2.12
317(a)(1).................................................. 6.8
(a)(2).................................................. 6.9
(b)..................................................... 2.2
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318(a)..................................................... 13.1
(b).................................................... N.A.
(c)..................................................... 13.1
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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INDENTURE dated as of December 21, 2001 among COTT BEVERAGES INC., a
Georgia corporation (the "Issuer"), the Guarantors (as defined herein)
identified on the signature pages hereto and HSBC BANK USA, as trustee (the
"Trustee").
The Issuer, the Guarantors and the Trustee agree as follows for the
benefit of the other parties and for the equal and ratable benefit of the
Holders of the 8% Senior Subordinated Notes due 2011 and the 8% Senior
Subordinated Notes due 2011 if and when issued in the Exchange Offer
(collectively, the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions
"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,
whether or not such Indebtedness is 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.
"Additional Notes" means up to $225.0 million in aggregate principal
amount of Notes (other than the Initial Notes) issued under this Indenture in
accordance with Sections 2.2 and 4.9 hereof.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means 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 Stock of a Person will be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Agent" means any Registrar, Paying Agent, co-registrar,
authenticating agent or securities custodian.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Asset Sale" means: (i) the sale, lease, conveyance or other
disposition of any assets or rights, other than sales of inventory in the
ordinary course of business consistent with past practices; provided that the
sale, conveyance or other disposition of all or substantially all of the assets
of Cott and its Restricted Subsidiaries taken as a whole will be governed by
Section 4.15 and/or Section 5.1 and not by Section 4.10; and (ii) the issuance
of Equity Interests in any of Cott's Restricted Subsidiaries or the sale of
Equity Interests in any of its Subsidiaries.
Notwithstanding the preceding, the following items will not be deemed to be
Asset Sales: (i) any single transaction or series of related transactions that
involves assets having a fair market value of less than $5.0 million; (ii) a
transfer of assets between or among Cott and its Restricted Subsidiaries; (iii)
an issuance of Equity Interests by a Restricted Subsidiary to Cott or to another
Restricted Subsidiary; (iv) the sale or lease of equipment, inventory, accounts
receivable or other assets in the ordinary course of business or that is worn
out, obsolete or damaged or no longer used or useful in the business; (v) the
sale or other disposition of cash or Cash Equivalents and other current assets;
(vi) a Restricted Payment or Permitted Investment that is permitted by Section
4.7, (vii) any disposition of assets in exchange for assets of comparable fair
market value that are used or usable in any Permitted Business, provided that
(x) if the fair market value of the assets so disposed of, in a single
transaction or in a series of related transactions, is in excess of $10.0
million, such transaction shall be approved by the Board of Directors, (y) if
the fair market value of the assets so disposed of, in a single transaction or
in a series of related transactions, is in excess of $25.0 million, Cott shall
obtain an opinion or report from an independent financial advisor confirming
that the assets received by Cott and the Restricted Subsidiaries in such
exchange have a fair market value of at least the fair market value of the
assets so disposed and (z) any cash or Cash Equivalents received by Cott or a
Restricted Subsidiary in connection with such exchange (net of any transaction
costs of the type deducted under the definition of "Net Proceeds") shall be
treated as Net Proceeds of an Asset Sale and shall be applied in the manner set
forth in Section 4.10; (viii) licenses of intellectual property that are in
furtherance of, or integral to, other business transactions entered into by Cott
or a Restricted Subsidiary entered into in the ordinary course of business; and
(ix) like-kind property exchanges pursuant to Section 1031 of the Internal
Revenue Code.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value 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. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in Section
13(d)(3) of the Exchange Act), such "person" will be deemed to have beneficial
ownership of all securities that such "person" has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "Beneficially Owns" and "Beneficially Owned" have a
corresponding meaning.
"Board of Directors" means (i) with respect to a corporation, the
board of directors of the corporation; (ii) with respect to a partnership, the
board of directors of any corporate general partner of such partnership; and
(iii) with respect to any other Person, the board or committee of such Person
serving a similar function.
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"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
or the general partner, in the case of a limited partnership, of such Person
(or, if such Person is a partnership, one of its general partners) to have been
duly adopted by the Board of Directors of such Person or the general partner, in
the case of a limited partnership, of such Person and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination is
to be made, the amount of the liability in respect of a capital lease that would
at that 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 distribution 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 of the United States government
(provided that the full faith and credit of the United States is pledged in
support of those securities) having maturities of not more than 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 Credit Agreement or with
any domestic commercial bank having capital and surplus in excess of $500.0
million and at least a rating of "A" or equivalent thereof by Xxxxx'x or a
rating of "A" or equivalent thereof by S&P, (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 or S&P and in
each case maturing within six months after the date of acquisition, (vi) money
market funds at least 95% of the assets of which constitute Cash Equivalents of
the kinds described in clauses (i) through (v) of this definition; and (vii)
investments of a nature similar to the foregoing in countries other than the
United States where Cott or its Restricted Subsidiaries are then doing business;
provided that references to the U.S. Government shall be deemed to mean foreign
countries having a sovereign rating of "A" or better from either Xxxxx'x or S&P.
"Change of Control" means the occurrence of any of the following:
(i) the direct or indirect sale, 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 properties or assets of Cott
and its Subsidiaries taken as a whole to any "person" (as that term is used in
Section 13(d)(3) of the Exchange Act); (ii) the adoption of a plan relating to
the
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liquidation or dissolution of Cott or the Issuer; (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that (A) any "person" (as defined above) other than the
Permitted Holders, becomes the Beneficial Owner, directly or indirectly, of more
than 35% of the Voting Stock of Cott, measured by voting power rather than
number of shares and (B) the Permitted Holders Beneficially Own, directly or
indirectly, in the aggregate, a lesser percentage of the Voting Stock of Cott,
measured by voting power rather than number of shares, than such other person;
(iv) the first day on which a majority of the members of the Board of Directors
of Cott are not Continuing Directors; or (v) Cott consolidates with, or merges
with or into, any Person, or any Person consolidates with, or merges with or
into, Cott, in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of Cott or such other Person is converted into or
exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of Cott outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person or a Person of which
the surviving or transferee Person is a wholly-owned Subsidiary constituting a
majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person or a Person of which the surviving or transferee Person is a
wholly-owned Subsidiary (immediately after giving effect to such issuance).
"Change of Control Triggering Event" means both the occurrence of a
Change of Control and a Rating Decline.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the United States Securities and Exchange
Commission.
"Cott" means Cott Corporation, a Canadian company and a Guarantor of
the Notes, and its successors.
"Clearstream" means Clearstream Banking, S.A., and its successors.
"Consolidated Cash Flow" means, with respect to any specified 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 by such
Person or any of its Subsidiaries 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
Restricted Subsidiaries for such period, to the extent that such provision for
taxes was deducted in computing such Consolidated Net Income; plus (iii)
consolidated interest expense of such Person and its Restricted 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, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit (excluding charges included in cost of goods sold or selling, general
and administrative expenses in connection with worker's compensation or the
export of products) or bankers' acceptance financings, and net of the effect of
all payments made or received pursuant to Hedging Obligations), to the extent
that any such expense was deducted
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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; minus (v) non-cash items increasing such
Consolidated Net Income for such period, other than the accrual of revenue in
the ordinary course of business, in each case, on a consolidated basis and
determined in accordance with GAAP.
"Consolidated Net Income" means, with respect to any specified
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 will be included only to the extent of the amount of
dividends or distributions paid in cash to the specified Person or a Restricted
Subsidiary of the Person; (ii) the Net Income of any Restricted Subsidiary of
Cott other than the Issuer will 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 Restricted Subsidiary or its stockholders (other than due to
restrictions contained in Credit Facilities of any such Restricted Subsidiary
permitted under clause (m) of Section 4.8 that limit but do not absolutely
prohibit the payment of dividends or similar distributions); (iii) the Net
Income of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition will be excluded; (iv) the
cumulative effects of changes in accounting principles will be excluded; (v) any
non-cash write-up or non-cash write-down of assets (including deferred assets
and excluding any such non-cash write-up or non-cash write-down to the extent
that it represents an accrual of or reserve for cash expenses in any future
period or amortization or a prepaid cash expense that was paid in a prior
period) will be excluded (but solely to the extent that this adjustment to
Consolidated Net Income is used to determine whether Cott or a Restricted
Subsidiary may make Investments pursuant to clause (c) of the first paragraph of
Section 4.7); and (vi) any redemption premiums paid on the Refinanced Notes will
be excluded.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of Cott who: (i) was a member of such Board of
Directors on the date of this Indenture; or (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.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 13.2 hereof or such other address as to which
the Trustee may give notice to the Issuer.
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"Credit Agreement" means that certain Credit Agreement, dated as of
July 19, 2001 as amended as of December 13, 2001 and as further amended as of
December 20, 2001, by and among Cott, the Issuer and Xxxxxx Brothers Inc., First
Union National Bank, Bank of Montreal and Xxxxxx Commercial Paper Inc.,
providing for up to $175.0 million of 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 including any amendment, modification,
renewal, refinancing, that increases the amount of credit available thereunder.
"Credit Facilities" means, one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced in whole
or in part from time to time.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"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 Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.6 hereof, in the
form of Exhibit A-1 hereto except that such Note shall not bear the Global Note
Legend and shall not have the "Schedule of Exchanges of Interests in the Global
Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.3 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Senior Debt" means: (i) any Indebtedness outstanding
from time to time under the Credit Agreement; and (ii) any other Senior Debt
permitted under this Indenture, the principal amount of which is $25.0 million
or more and that has been designated by the Issuer as "Designated Senior Debt"
in an Officers' Certificate delivered to the Trustee.
"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, in each case at the option of the holder of the Capital Stock), 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 of the Capital Stock, in whole or in part, on or prior to the date that
is 91 days after the date on which the notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require Cott
or the Issuer to repurchase such Capital Stock upon the occurrence of a change
of control or an asset sale will not constitute Disqualified Stock if the
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terms of such Capital Stock provide that Cott or the Issuer may not repurchase
or redeem any such Capital Stock pursuant to such provisions unless such
repurchase or redemption complies with Section 4.7"
"Domestic Subsidiary" means any Restricted Subsidiary of Cott other
than Cott Investments LLC that was formed under the laws of the United States or
any state of the United States or the District of Columbia.
"Eligible Inventory" means, with respect to any Person, Inventory
(net of reserves for slow moving inventory) consisting of finished goods held
for sale in the ordinary course of such Person's business, that are located at
such Person's premises and replacement parts and accessories inventory located
at such Person's premises. Eligible Inventory shall not include obsolete items,
work-in-process, spare parts, supplies used or consumed in such Person's
business, Inventory subject to a security interest or lien in favor of any
non-Affiliate other than the administrative agent under the Credit Agreement,
xxxx and hold goods, defective goods, if non-salable, "seconds," and Inventory
acquired on consignment.
"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 Euroclear Bank S.A./N.V., as operator of the
Euroclear system, and its successors.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of Capital Stock
(other than Disqualified Stock) made for cash on a primary basis by Cott or the
Issuer after the date of this Indenture.
"Existing Indebtedness" means Indebtedness of Cott and its
Restricted Subsidiaries (other than Indebtedness under the Credit Agreement) in
existence on the date of this Indenture, until such amounts are repaid.
"Fixed Charges" means, with respect to any specified 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, 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
-7-
associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit (excluding charges included in the cost of goods
sold or selling, general and administrative expenses other than in connection
with worker's compensation or the export of products) or bankers' acceptance
financings, and net of the effect of all payments made or received pursuant to
Hedging Obligations; plus (ii) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period; plus (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 Guarantee
or Lien is called upon; plus (iv) the product of (a) all dividends, whether paid
or accrued, on any series of preferred stock of such Person or any of its
Restricted Subsidiaries, other than dividends on Equity Interests payable solely
in Equity Interests of such Person (other than Disqualified Stock) or to Cott or
a Restricted Subsidiary, 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 Charges shall
exclude, however, any premiums, penalties, fees and expenses (and any
amortization thereof) payable in connection with the offering of the notes, or
the prepayment of the Refinanced Notes. In addition, any payments of interest or
related expenses relating to the Refinanced Notes once the same have been
discharged shall be excluded.
"Fixed Charge Coverage Ratio" means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the specified Person or any of its Subsidiaries incurs, assumes,
Guarantees, repays, repurchases or redeems any Indebtedness (other than ordinary
working capital borrowings) or issues, repurchases or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated and on or 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 will be calculated
giving pro forma effect to such incurrence, assumption, Guarantee, repayment,
repurchase or redemption of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds therefrom as if the
same had occurred at the beginning of the applicable four-quarter reference
period. In addition, for purposes of calculating the Fixed Charge Coverage
Ratio: (i) acquisitions that have been made by the specified Person 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 will be given pro forma effect as if they had occurred on the first day of
the four-quarter reference period and Consolidated Cash Flow for such reference
period will be calculated on a pro forma basis in accordance with Regulation S-X
under the Securities Act, but without giving effect to clause (3) of the proviso
set forth in the definition of Consolidated Net Income; (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, will 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, will be excluded, but only to the
extent that the obligations giving rise to such Fixed Charges will
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not be obligations of the specified Person or any of its Restricted Subsidiaries
following the Calculation Date.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary of
Cott other than a Domestic Subsidiary.
"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 this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, in the form of
Exhibit A hereto issued in accordance with Section 2.1, 2.6(b)(iv), 2.6(d)(ii)
or 2.6(f) hereof.
"Global Note Legend" means the legend set forth in Section
2.6(g)(ii), which is required to be placed on all Global Notes issued under this
Indenture.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" means 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, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"Guarantee Agreement" means, the supplemental indenture, in the form
of Exhibit D hereto, executed and delivered to the Trustee pursuant to which
each Guarantor created or acquired after the date of this Indenture will
guarantee payment of the Notes.
Guarantors" means each of: (i) Cott; and (ii) Cott Holdings Inc.,
Cott USA Corp., Cott Vending Inc., Interim BCB, LLC, Concord Holding GP Inc.,
Concord Holding LP Inc. and Concord Beverage LP; and (iii) any other Subsidiary
of Cott that executes a Guarantee in accordance with the provisions of this
Indenture; and their respective successors and assigns.
"Hedging Obligations" means, with respect to any specified Person,
the obligations of such Person incurred in the normal course of business and
consistent with past practices and not for speculative purposes under: (i)
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements; (ii) foreign exchange contracts and currency protection
agreements entered into with one of more financial institutions is designed to
protect the person or entity entering into the agreement against fluctuations in
interest rates or currency exchanges rates with respect to Indebtedness incurred
and not for purposes of speculation; (iii) any commodity futures contract,
commodity option or other similar agreement or arrangement designed to protect
against fluctuations in the price of commodities used by that entity at the
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time; and (iv) other agreements or arrangements designed to protect such person
against fluctuations in interest rates or currency exchange rates.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent: (i) in respect of
borrowed money; (ii) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof); (iii) in respect of banker's acceptances; (iv) representing Capital
Lease Obligations; (v) representing the balance deferred and unpaid of the
purchase price of any property which is due more than 6 months after the date of
placing such property in service or taking delivery and title thereto, except
any such balance that constitutes an accrued expense or trade payable arising in
the ordinary course of business; or (vi) representing any Hedging Obligations;
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any Indebtedness of any other Person. The amount of
any Indebtedness outstanding as of any date will be: (i) the accreted value of
the Indebtedness, in the case of any Indebtedness issued with original issue
discount; and (ii) the principal amount of the Indebtedness, together with any
interest on the Indebtedness 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 a beneficial
interest in a Global Note through a Participant.
"Initial Notes" means $275.0 million in aggregate principal amount
of Notes issued under this Indenture on the date hereof.
"Inventory" means, with respect to any Person, all inventory in
which such Person has any interest, including goods held for sale and all of
such Person's raw materials (but excluding any hazardous materials), work in
process, finished goods, packing and shipping materials, and raw and packaging
materials, wherever located, and any documents of title representing any of the
above.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including Guarantees 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 Cott or any
Restricted Subsidiary of Cott sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary of Cott such that,
after giving effect to any such sale or disposition, such Person is no longer a
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Subsidiary of Cott, Cott will 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
Interests of such Restricted Subsidiary not sold or disposed of in an amount
determined as provided in the third to last paragraph of Section 4.7. The
acquisition by Cott or any Restricted Subsidiary of Cott of a Person that holds
an Investment in a third Person will be deemed to be an Investment by Cott or
such Restricted Subsidiary in such third Person in an amount equal to the fair
market value of the Investment held by the acquired Person in such third Person
in an amount determined as provided in the third to last paragraph of Section
4.7.
"Issuer" has the meaning assigned to it in the preamble to this
Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York 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 at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Issuer and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"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.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Income" means, with respect to any specified 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 (or loss), together with any related provision for taxes on such gain (or
loss), realized in connection with: (a) any Asset Sale; or (b) the disposition
of any securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Subsidiaries;
and (ii) any extraordinary gain (or loss), together with any related provision
for taxes on such extraordinary gain (or loss).
"Net Proceeds" means the aggregate cash proceeds received by Cott 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 of the Asset Sale, taxes paid or payable as a result of the
Asset Sale, in each
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case, after taking into account any available tax credits or deductions and any
tax sharing arrangements, and amounts required to be applied to the repayment of
Indebtedness, other than Senior Debt secured by a Lien on the asset or assets
that were the subject of such Asset Sale and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"New Notes" means the Issuer's 8% Senior Subordinated Notes due 2011
issued by the Issuer pursuant to the Exchange Offer.
"Non-Recourse Debt" means Indebtedness: (i) as to which neither Cott
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 of the Indebtedness 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) of Cott
or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness 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 Cott or any of its Restricted Subsidiaries.
"Non-US. Person" means a Person who is not a U.S. Person.
"Note Guarantees" means the Guarantees of the Obligations of the
Issuer with respect to the Notes by the Guarantors and includes (i) Guarantees
in this Indenture and (ii) each guarantee executed by any Restricted Subsidiary
of the Issuer pursuant to the provisions of Section 11.5 of this Indenture.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Initial Notes by the Issuer.
"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 or any Assistant Secretary of
such Person.
"Officers' Certificate" means a certificate signed on behalf of any
Person by either the principal executive officer or the principal financial
officer, the treasurer or the principal accounting officer of such Person that
meets the requirements of Section 13.5 hereof.
"144A Global Note" means a global note in the form of Exhibit A-l
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of,
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and registered in the name of, the Depositary or its nominee that will be issued
in a denomination equal to the outstanding principal amount of the Notes sold in
reliance on Rule 144A.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee that meets the requirements of Section
13.5 hereof. The counsel may be an employee of or counsel to the Issuer, Cott,
any Subsidiary of the Issuer, any Subsidiary of Cott or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream).
"Permitted Business" means the lines of business conducted by Cott
and of its Restricted Subsidiaries on the date hereof and any business
incidental or reasonably related thereto including, without limitation, all
beverage businesses or which is a reasonable extension thereof as determined in
good faith by the Board of Directors of Cott and set forth in an Officers'
Certificate delivered to the Trustee.
"Permitted Holders" means (i) any or all of THL Equity Advisors IV,
LLC, Xxxxxx X. Xxx Equity Fund IV, L.P., Xxxxxx X. Xxx Foreign Fund IV, L.P.,
Xxxxxx X. Xxx Foreign Fund IV-B, L.P., 1997 Xxxxxx X. Xxx Nominee Trust, THL
Coinvestors III-A, LLC, THL Coinvestors III-B, LLC, Xxxxxx X. Xxx Charitable
Investment Partnership, L.P., Xxxxxx X. Xxx Company and THL-CCI Limited
Partnership or any Affiliates of any of the foregoing, any beneficiaries of the
1997 Xxxxxx X. Xxx Nominee Trust and Xxxxx Xxxxxx Capital and PW Partners 1997
L.P. and (ii) the estate of Xxxxxx X. Xxxxxx, Xxxxx Xxxxxx, any one or more of
the lineal descendants of Xxxxx Xxxxxx and/or their spouses, any trust
established solely for the benefit of any one or more of such persons, or a
partnership in which all of the equity interests are owned by any one or more of
such persons or a corporation wholly owned by any one or more of such persons,
and each of their respective Affiliates and Associates (as such term is defined
in Rule 405 under the Securities Act) and any charitable trust of which Xxxxx
Xxxxxx is a trustee, in each case at the time of determination.
"Permitted Investments" means: (i) any Investment in Cott or in a
Restricted Subsidiary of Cott; (ii) any Investment in Cash Equivalents; (iii)
any Investment by Cott or any Subsidiary of Cott in a Person, if as a result of
such Investment: (a) such Person becomes a Restricted Subsidiary of Cott; or (b)
such Person is merged, consolidated or amalgamated with or into, or transfers or
conveys all or substantially all of its assets to, or is liquidated into, Cott
or a Restricted Subsidiary of Cott; (iv) any 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; (v) any acquisition of assets solely in
exchange for the issuance of Equity Interests (other than Disqualified Stock) of
Cott; (vi) any Investments received in compromise of obligations of such persons
incurred in the ordinary course of trade creditors or customers that were
incurred in the ordinary course of business, including pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of any
trade creditor or customer; (vii) Hedging Obligations permitted to be incurred
under Section 4.9; (viii) transactions permitted under clause (vii) of the
definition of "Asset Sale"; (ix) other Investments in any Person having an
aggregate fair market value (measured on the date each such Investment was made
and without giving
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effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (ix) that are at the time outstanding
not to exceed $60.0 million; and (x) loans, advances and guarantees to or in
favor of co-packers and other suppliers to assist them, by making plant
improvements or purchasing materials or equipment or otherwise, in meeting
production requirements of Cott or its Subsidiaries in an amount not to exceed
$20.0 million outstanding at any one time.
"Permitted Junior Securities" means: (i) Equity Interests in the
Issuer or any Guarantor; or (ii) debt securities that are subordinated to all
Senior Debt and any debt securities issued in exchange for Senior Debt to
substantially the same extent as, or to a greater extent than, the Notes and the
Guarantees are subordinated to Senior Debt under this Indenture.
"Permitted Refinancing Indebtedness" means any Indebtedness of Cott
or any of its Subsidiaries issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of Cott or any of its Subsidiaries (other than intercompany
Indebtedness); provided that: (i) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the Indebtedness
extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all expenses and premiums
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 Cott, the Issuer, a Guarantor or by the
Subsidiary who is the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such person over the holder
of the other Capital Stock issued by such Person.
"Private Placement Legend" means the legend set forth in Section
2.6(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
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Rating Agencies" means (i) S&P and (ii) Moody's and (iii) if S&P or
Moody's or both shall not make a rating of the Notes publicly available, a
nationally recognized United States securities rating agency or agencies, as the
case may be, selected by Cott, which shall be substituted for S&P or Moody's or
both, as the case may be.
"Rating Category" means (i) with respect to S&P, any of the
following categories: X, XXX, XX, X, XXX, XX, X and D (or equivalent successor
categories); (ii) with respect to Moody's, any of the following categories: X,
Xxx, Xx, X, Xxx, Xx, C and D (or equivalent successor categories); and (iii) the
equivalent of any such category of S&P or Moody's used by another Rating Agency.
In determining whether the rating of the Notes has decreased by one or more
gradations, gradations with Rating Categories (+ and -, for S&P; 1, 2 and 3 for
Moody's; or the equivalent gradations for another Rating Agency) shall be taken
into account (e.g., with respect to S&P, a decline in a rating from BB+ to BB,
as well as from BB- to B+, will constitute a decrease of one gradation).
"Rating Date" means the date which is 90 days prior to the earlier
of (x) a Change of Control and (y) public notice of the occurrence of a Change
of Control or of the intention by Cott, the Issuer or any Person to effect a
Change of Control.
"Rating Decline" means the decrease (as compared with the Rating
Date) by one or more gradations (including gradations within Rating Categories)
of the rating of the Notes by either Rating Agency on, or within six months
after, the date of public notice of the occurrence of a Change of Control or of
the intention by Cott, the Issuer or any Person to effect a Change of Control
(which period shall be extended for so long as the rating of the notes is under
publicly announced consideration for possible downgrade by any of the Rating
Agencies); provided, however, that in the event the Notes are not rated by two
Rating Agencies at the time a Change of Control occurs, a Rating Decline shall
be deemed to have occurred.
"Refinanced Notes" means the outstanding 9-3/8% Senior Notes Due
2005 issued pursuant to an indenture, dated as of June 27, 1995, between Cott
and The Bank of New York, as trustee, and 8-1/2% Senior Notes Due 2007 issued
pursuant to an indenture, dated as of June 16, 1997, between Cott and Marine
Midland Bank, as trustee.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of December 21, 2001, by and among the Issuer, the
Guarantors and the other parties named on the signature pages thereof, as such
agreement may be amended, modified or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global Note
in the form of Exhibit A-1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee,
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issued in a denomination equal to the outstanding principal amount of the
Regulation S Temporary Global Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary global Note
in the form of Exhibit A-2 hereto bearing the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the Notes initially sold in reliance on Rule 903 of Regulation S.
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Office of the Trustee (or any successor
group of the Trustee) with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"Securities" means the Notes and the Guarantees issued under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means: (i) all Indebtedness of the Issuer or any
Guarantor outstanding from time to time under Credit Facilities and all Hedging
Obligations with respect thereto; (ii) any other Indebtedness of the Issuer or
any Guarantor permitted to be incurred under the terms of this Indenture, unless
the instrument under which such Indebtedness is incurred expressly provides that
it is on a parity with or subordinated in right of payment to the Notes or any
Guarantee; and (iii) all Obligations with respect to the items listed in the
preceding clauses (i) and (ii). Notwithstanding anything to the contrary in the
preceding, Senior Debt will not include: (i) any liability for federal, state,
local or other taxes owed or owing by Cott, the Issuer or any other Guarantor;
(ii) any intercompany Indebtedness of Cott, the Issuer or any other Guarantor to
any Subsidiary or any of its Affiliates; (iii) any trade payables; or (iv) the
portion of
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any Indebtedness that is incurred in violation of this Indenture; provided that
Indebtedness under the Credit Agreement will not cease to be Senior Debt if
borrowed based on a written certification (which can be included in a borrowing
request) from an officer of the borrower to the effect that such Indebtedness
was permitted by the indenture to be incurred.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that would
be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect
on the date of this Indenture.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and will 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.
"Subordinated Obligations" means any Indebtedness of the Issuer that
is expressly subordinated or junior in right of payment to the Notes.
"Subsidiary" means, with respect to any specified 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 of the corporation, association or other business entity is at the time
owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person (or a combination thereof); and (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 that Person or one or more Subsidiaries of that Person (or
any combination thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA; provided, however, that in the event the Trust
Indenture Act is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent global Note in the form
of Exhibit A-1 attached hereto that bears the Global Note Legend and that has
the "Schedule of Exchanges
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of Interests in the Global Note" attached thereto, that is deposited with or on
behalf of and registered in the name of the Depositary, and that does not bear
the Private Placement Legend.
"Unrestricted Subsidiary" means (a) Northeast Xxxxx Inc., (b) any
Subsidiary of an Unrestricted Subsidiary and (c) any Subsidiary of Cott (other
than the Issuer or any successor to the Issuer) 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: (i) has no Indebtedness other than
Non-Recourse Debt; (ii) is not party to any agreement, contract, arrangement or
understanding with Cott or any Restricted Subsidiary of Cott unless the terms of
any such agreement, contract, arrangement or understanding are no less favorable
to Cott or such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of Cott; (iii) is a Person with respect
to which neither Cott nor any of its Restricted Subsidiaries has any direct or
indirect obligation to maintain or preserve such Person's financial condition or
to cause such Person to achieve any specified levels of operating results; (iv)
has not guaranteed or otherwise directly or indirectly provided credit support
for any Indebtedness of Cott or any of its Restricted Subsidiaries; and (v) has
at least one director on its Board of Directors that is not a director or
executive officer of Cott or any of its Restricted Subsidiaries and has at least
one executive officer that is not a director or executive officer of Cott or any
of its Restricted Subsidiaries.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
"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 payment of
principal, including payment at final maturity, in respect of the Indebtedness,
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.
SECTION 1.2. Other Definitions
Defined in
Term Section
"Affiliate Transaction" 4.11
"Asset Sale Offer" 4.10
"Authentication Order" 2.2
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.3
"Designated Senior Debt" 10.2
"DTC" 2.3
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"Event of Default" 6.1
"Excess Proceeds" 4.10
"Funding Guarantor" 11.4
"incur" 4.9
"Legal Defeasance" 8.2
"Offer Amount" 3.9
"Offer Period" 3.9
"Pari Passu Notes" 4.10
"Paying Agent" 2.3
"Payment Blockage Notice" 10.4
"Payment Default" 6.1
"Permitted Debt" 4.9
"Permitted Junior Securities" 10.2
"Purchase Date" 3.9
"Registrar" 2.3
"Representative" 10.2
"Restricted Payments" 4.7
"Senior Debt" 10.2
SECTION 1.3. 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 and the Note Guarantees;
"indenture security holder" means a Holder of a Security;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"Obligor" on the indenture securities means the Issuer, the
Guarantors and any successor obligor upon the indenture securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
SECTION 1.4. Rules of Construction
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
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(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) 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.
SECTION 1.5. One Class Of Securities
The Initial Notes, the Additional Notes and the New Notes shall vote
and consent together on all matters as one class and none of the Initial Notes,
the Additional Notes or the New Notes shall have the right to vote or consent as
a separate class on any matter.
ARTICLE II
THE NOTES
SECTION 2.1. Form and Dating
(a) General.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and the
Issuer, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Security conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Global Notes.
Notes issued in global form shall be substantially in the form of
Exhibits A-1 or A-2 attached hereto (including the Global Note Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A-l attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified
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therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the custodian of the Notes
(the "Note Custodian"), at the direction of the Trustee, in accordance with
written instructions given by the Holder thereof as required by Section 2.6
hereof.
(c) Temporary Global Notes.
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 be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, at its New York office, as custodian for the Depositary, and registered
in the name of the Depositary or the nominee of the Depositary for the accounts
of designated agents holding on behalf of Euroclear or Clearstream, duly
executed by the Issuer and authenticated by the Trustee as hereinafter provided.
The Restricted Period 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 Clearstream 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 Note (except to the extent of any
beneficial owners thereof who acquired an interest therein during the Restricted
Period pursuant to another exemption from registration under the Securities Act
and who will take delivery of a beneficial ownership interest in a 144A Global
Note bearing a Private Placement Legend, all as contemplated by Section
2.6(a)(ii) hereof), and (ii) an Officers' Certificate from the Issuer directing
the Trustee to authenticate and deliver the Regulation S Permanent Global Note.
Following the termination of the 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 Note. The aggregate
principal amount of the Regulation S Temporary Global Note 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.
(d) Euroclear, Clearstream Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Clearstream Banking" and "Customer Handbook" of Clearstream shall
be applicable to transfers of beneficial interests in the Regulation S Temporary
Global Note and the Regulation S Global Notes that are held by Participants
through Euroclear or Clearstream.
SECTION 2.2. Execution and Authentication
Two Officers shall sign the Notes for the Issuer by manual or
facsimile signature. The Issuer's seals, if any, shall be reproduced on the
Notes and may be in facsimile form.
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If an Officer whose signature is on a Security no longer holds that
office at the time a Security is authenticated, the Security shall nevertheless
be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Issuer signed by two
Officers of the Issuer (an "Authentication Order"), authenticate Initial Notes
and New Notes for original issue up to the aggregate principal amount of
$500,000,000. The aggregate principal amount of Notes outstanding at any time
may not exceed such amount except as provided in Section 2.7 hereof.
The Trustee may (at the expense of the Issuer) appoint an
authenticating agent acceptable to the Issuer to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Holders or an Affiliate of the Issuer and has the same
protections under Article VII herein.
SECTION 2.3. Registrar and Paying Agent
The Issuer shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Issuer may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Issuer may change any
Paying Agent or Registrar without notice to any Holder. The Issuer shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Issuer fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Issuer, any of its
wholly-owned Subsidiaries or any Guarantor may act as Paying Agent or Registrar.
The Issuer initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes.
The Issuer initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
SECTION 2.4. Paying Agent to Hold Money in Trust
The Issuer shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes, and
will notify the Trustee in writing of any default by the Issuer in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Issuer at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Issuer or a
wholly-owned Subsidiary) shall have no further
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liability for the money. If the Issuer, a Restricted Subsidiary or a Guarantor
acts as Paying Agent, it shall segregate and hold in a separate trust funds for
the benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Issuer, the Trustee
shall serve as Paying Agent for the Notes.
SECTION 2.5. 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 Section 312(a). If the Trustee
is not the Registrar, the Issuer shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Issuer shall otherwise comply with TIA Section 312(a).
SECTION 2.6. Transfer And Exchange
(a) Transfer and Exchange of Global Notes.
A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes will be exchanged by the Issuer for Definitive
Notes if (i) the Issuer delivers to the Trustee written notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Issuer within 120
days after the date of such notice from the Depositary or (ii) the Issuer in its
sole discretion determines that the Global Notes (in whole but not in part)
should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee; provided that in no event shall the Regulation S
Temporary Global Note be exchanged by the Issuer for Definitive Notes prior to
(x) the expiration of the Restricted Period and (y) the receipt by the Registrar
of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act. Upon the occurrence of either of the preceding events in (i) or
(ii) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee in writing. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.7 and 2.10 hereof.
Every Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.6(a), however, beneficial interests in a Global Note
may be transferred and exchanged as provided in Section 2.6(b), (c) or (f)
hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes.
The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Transfers of
beneficial interests in the Global Notes also shall require
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compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Temporary Regulation S Global Note may not be
made to a U.S. Person or for the account or benefit of a U.S. Person
(other than the initial purchasers of the Notes). Beneficial interests in
any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.6(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.6(b)(i) above, the
transferor of such beneficial interest must deliver to the Registrar
either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B)
(1) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to
the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall
be registered to effect the transfer or exchange referred to in (1) above;
provided that in no event shall Definitive Notes be issued upon the
transfer or exchange of beneficial interests in the Regulation S Temporary
Global Note prior to (x) the expiration of the Restricted Period and (y)
the receipt by the Registrar of any certificates required pursuant to Rule
903 under the Securities Act. Upon consummation of an Exchange Offer by
the Issuer in accordance with Section 2.6(f) hereof, the requirements of
this Section 2.6(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global Notes. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant Global
Note(s) pursuant to Section 2.6(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.6(b)(ii) above and the
Registrar receives the following:
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(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or the
Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted Global
Note. A beneficial interest in any Restricted Global Note may be exchanged
by any holder thereof for a beneficial interest in an Unrestricted Global
Note or transferred to a Person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.6(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1)
a broker-dealer, (2) a Person participating in the distribution of
the New Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest in
an Unrestricted Global Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
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If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Issuer shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.2 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted Definitive
Note, then, upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the
Issuer or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(F) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
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the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.6(h) hereof,
and the Issuer shall execute and the Trustee shall upon receipt of an
Authentication Order authenticate and deliver to the Person designated in
the instructions a Definitive Note in the appropriate principal amount.
Any Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.6(c) shall be registered
in such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall at the expense of the Issuer deliver such
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.6(c)(i)
shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.6(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not be
exchanged for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar
of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an exemption
from the registration requirements of the Securities Act other than Rule
903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the New Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Definitive Note that
does not bear the Private
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Placement Legend, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof,
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial interest
for a Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.6(b)(ii) hereof, the
Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.6(h) hereof,
and the Issuer shall execute and the Trustee shall upon receipt of an
Authentication Order authenticate and (at the expense of the Issuer)
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.6(c)(iv) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall (at the expense of the Issuer)
deliver such Definitive Notes to the Persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.6(c)(iv) shall not bear the Private
Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(b) thereof;
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(B) if such Restricted Definitive Note is being transferred to
a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to
the Issuer or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(F) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof, the Trustee
shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of
clause (B) above, the 144A Global Note, and in the case of clause
(C) above, the Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the Letter of Transmittal that
it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the New Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(1) the Registrar receives the following:
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(2) if the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto, including the certifications
in item (1)(c) thereof; or
(3) if the Holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.6(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note at any time. Upon receipt of a written request for such an exchange
or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued,
the Issuer shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.6(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.6(e).
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(i) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and registered
in the name of Persons who take delivery thereof in the form of a
Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes.
Any Restricted Definitive Note may be exchanged by the Holder thereof for
an Unrestricted Definitive Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the Letter of Transmittal that
it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the New Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Issuer;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item
(1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
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and, in each such case set forth in this subparagraph (D), if the Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to the Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain compliance
with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive Notes pursuant to
the instructions from the Holder thereof.
(f) Exchange Offer.
Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Issuer shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.2, the Trustee shall
authenticate (i) one or more Unrestricted Global Notes in an aggregate principal
amount equal to the principal amount of the beneficial interests in the
Restricted Global Notes tendered for acceptance by Persons that certify in the
Letters of Transmittal that (x) they are not broker-dealers, (y) they are not
participating in a distribution of the New Notes and (z) they are not affiliates
(as defined in Rule 144) of the Issuer, and accepted for exchange in the
Exchange Offer and (ii) Definitive Notes 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 the Issuer shall execute and the Trustee
shall authenticate and (at the expense of the Issuer) deliver to the Persons
designated by the Holders of Definitive Notes so accepted Definitive Notes in
the appropriate principal amount.
(g) Legends.
The following legends shall appear on the face of all Global Notes
and Definitive Notes issued under this Indenture unless specifically stated
otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note
and each Definitive Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following form:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY OTHER SECURITIES
LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
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OF THE SECURITIES ACT OR SUCH OTHER SECURITIES LAWS. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING ITS NOTE
IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE
WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE
144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR
OF THIS NOTE) OR THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND
(Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE
"RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO
A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
INSIDE THE UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED
THAT THE COMPANY, THE TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY
THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL THE
SECURITIES.
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(B) Notwithstanding the foregoing, any Global Note or Definitive
Note issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.6 (and all Notes issued in
exchange therefor or substitution thereof) shall not bear the Private Placement
Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 2.7 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.6(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND
(IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE PRIOR WRITTEN CONSENT OF THE ISSUER."
(iii) Regulation S Temporary Global Note Legend. The
Regulation S Temporary Global Note shall bear a legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER
NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL
BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes.
At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary at the direction of
the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
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(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Issuer shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon receipt of an Authentication Order in accordance
with Section 2.2 hereof or upon receipt of a written request of the
Registrar.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Issuer may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.6, 3.9, 4.10, 4.15 and 9.5 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Issuer, 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.
(v) The Issuer shall not be required (A) to issue, to register
the transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.2 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.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuer may deem and
treat the Person in whose name any Note is registered as the absolute
owner of such Note for the purpose of receiving payment of principal of
and interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Issuer shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.2 hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this Section
2.6 to effect a registration of transfer or exchange may be submitted by
facsimile.
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SECTION 2.7. Replacement Notes
If any mutilated Note is surrendered to the Trustee or the Issuer
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Issuer, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Issuer and the Trustee may charge for their expenses in replacing
a Note.
Every replacement Note is an additional obligation of the Issuer and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.8. Outstanding Notes
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled 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 as not outstanding. Except as set forth in Section 2.9 hereof, a Note
does not cease to be outstanding because the Issuer or an Affiliate of the
Issuer holds the Note; however, Notes held by the Issuer or a Subsidiary of the
Issuer shall not be deemed to be outstanding for purposes of Section 3.7(b)
hereof.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section
4.1 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuer, 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 2.9. Treasury Notes
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the
Issuer or any Guarantor, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer or any
Guarantor 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 that the Trustee knows are so
owned shall be so disregarded.
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SECTION 2.10. Temporary Notes
Until certificates representing Notes are ready for delivery, the
Issuer may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Issuer considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee.
Without unreasonable delay, the Issuer shall prepare and the Trustee
shall authenticate Definitive Notes in exchange for any temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits
of this Indenture.
SECTION 2.11. Cancellation
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act). Upon the Issuer's written request, certification of the destruction of all
canceled Notes shall be delivered (at the expense of the Issuer) to the Issuer.
The Issuer may not issue new Notes to replace Notes that it has paid or that
have been delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest
If the Issuer 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, in each case at the rate provided
in the Notes and in Section 4.1 hereof. The Issuer shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Issuer shall fix or cause to be fixed each
such special record date and payment date, provided that no such special record
date shall be less than 10 days prior to the related payment date for such
defaulted interest. At least 15 days before the special record date, the Issuer
(or, upon the written request of the Issuer, the Trustee in the name and at the
expense of the Issuer) 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. CUSIP Numbers
The Issuer in issuing the Notes may use "CUSIP" numbers (if then
generally in use) and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders, provided, however, that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuer shall promptly notify the Trustee of any
change in CUSIP numbers.
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In the event that the Issuer shall issue and the Trustee shall
authenticate any Additional Notes pursuant to this Indenture, the Issuer shall
use its best efforts to obtain the same CUSIP number for such Additional Notes
as is printed on the Notes outstanding at such time; provided, however, that if
any series of Additional Notes is determined, pursuant to an Opinion of Counsel,
to be a different class of security than the Notes outstanding at such time for
federal income tax purposes, the Issuer may obtain a CUSIP number for such
series of Additional Notes that is different from the CUSIP number printed on
the Notes then outstanding.
ARTICLE III
REDEMPTION AND PREPAYMENT
SECTION 3.1. Notices To Trustee
If the Issuer elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee, at
least 45 days (unless a shorter period is acceptable to the Trustee) but not
more than 60 days before a redemption date, an Officers' Certificate setting
forth (i) the clause 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.
SECTION 3.2. Selection of Notes to be Redeemed
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select the Notes to be redeemed
or purchased among the Holders of the Notes 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 in
accordance with any other method the Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption.
The Trustee shall promptly notify the Issuer of the Notes selected
for redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. Notes and portions of Notes selected
shall be in amounts of $1,000 or whole multiples of $1,000; except that if all
of the Notes of a Holder are to be redeemed, the entire outstanding amount of
Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed.
Except as provided in the preceding sentence, provisions of this Indenture that
apply to Notes called for redemption also apply to portions of Notes called for
redemption.
SECTION 3.3. Notice of Redemption
Subject to the provisions of Section 3.9 and Section 4.15 hereof, at
least 30 days but not more than 60 days before a redemption date, the Issuer
shall mail or cause to be mailed, by first class mail, a notice of redemption to
each Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
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(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Issuer defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at its expense; provided, however, that the
Issuer shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.4. Effect of Notice of Redemption
Once notice of redemption is mailed in accordance with Section 3.3
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.5. Deposit of Redemption Price
At or prior to 10:00 a.m., New York City time, on the redemption
date, the Issuer shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date. The Trustee or the Paying Agent shall promptly return
to the Issuer any money deposited with the Trustee or the Paying Agent by the
Issuer in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Notes to be redeemed.
If the Issuer complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose
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name such Note was registered at the close of business on such record date. If
any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Issuer to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.1 hereof.
SECTION 3.6. Notes Redeemed in Part
Upon surrender of a Note that is redeemed in part, the Issuer shall
issue and, upon receipt of an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Issuer a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.7. Optional Redemption
(a) Except as set forth in clause (b) of this Section 3.7, the
Issuer shall not have the option to redeem the Notes pursuant to this Section
3.7 prior to December 15, 2006. Thereafter, the Issuer shall have the option to
redeem the Notes, 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,
if any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on December 15 of the years indicated below:
YEAR REDEMPTION PRICE
---- ----------------
2006.................................... 104.000%
2007.................................... 102.667%
2008.................................... 101.333%
2009 and thereafter..................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section
3.7, at any time prior to December 15, 2004, the Issuer may, on any one or more
occasions, redeem up to 35% of the aggregate principal amount of Notes issued
under this Indenture at a redemption price of 108% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages thereon, if
any, to the redemption date, with the net cash proceeds of one or more Equity
Offerings by the Issuer or with the net cash proceeds of one or more Equity
Offerings by Cott that are contributed to the Issuer as common equity capital;
provided that at least 65% of the aggregate principal amount of Notes issued
under this Indenture remain outstanding immediately after each occurrence of
such redemption; and provided further, that each such redemption shall occur
within 45 days of the date of the closing of such Equity Offering.
(c) Any redemption pursuant to this Section 3.7 shall be made
pursuant to the provisions of Section 3.1 through 3.6 hereof.
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SECTION 3.8. Mandatory Redemption
Except as set forth in Sections 3.9, 4.10 and 4.15, the Issuer shall
not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
SECTION 3.9. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Issuer shall
be required to commence an Asset Sale Offer, it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Issuer shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Notes tendered in response to the Asset
Sale 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
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 shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Issuer shall send,
by first class mail, a written notice to the Trustee and to each of the Holders.
The notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer
shall be made to all Holders. The notice, which shall govern the terms of the
Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
3.9 and Section 4.10 hereof and the length of time the Asset Sale 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 accrete or accrue interest;
(d) that, unless the Issuer defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrete or accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may only elect to have all of such Note purchased and may not
elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect
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Purchase" on the reverse of the Note completed, or transfer by book-entry
transfer, to the Issuer, a depositary, if appointed by the Issuer, or a Paying
Agent at the address specified in the notice at least three days before the
Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Issuer, 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;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Issuer shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Issuer so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Issuer shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale
Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the Issuer in accordance
with the terms of this Section 3.9. The Issuer, the Depositary or the Paying
Agent, as the case may be, shall promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and accepted by
the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the
Trustee, upon receipt of an Authentication Order from the Issuer shall
authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered. Any Note not so
accepted shall be promptly mailed or delivered by the Issuer to the Holder
thereof. The Issuer shall publicly announce the results of the Asset Sale Offer
on the Purchase Date.
Other than as specifically provided in this Section 3.9, any
purchase pursuant to this Section 3.9 shall be made pursuant to the provisions
of Sections 3.1 through 3.6 hereof.
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Notes
The Issuer shall pay or cause to be paid the principal of, premium,
if any, and interest and Liquidated Damages, if any, on the Notes on the dates
and in the manner provided in the Notes. Principal, premium, if any, and
interest and Liquidated Damages, if any, shall be considered paid on the date
due if the Paying Agent, if other than Cott, the Issuer or a Subsidiary thereof,
holds as of 10:00 a.m. New York City Time on the due date money deposited by the
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Issuer in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest and Liquidated Damages, if any,
then due. The Issuer 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.
The Issuer 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 4.2. Maintenance of Office or Agency
The Issuer 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, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer 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 the Issuer 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.
The Issuer may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes. The Issuer 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.
The Issuer hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Issuer in accordance with Section
2.3.
SECTION 4.3. Reports
(a) Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding and irrespective of whether the
Exchange Offer Registration Statement or the Shelf Registration Statement has
been declared effective by the Commission, Cott shall furnish to the Holders of
Notes, within the time periods specified in the Commission's rules and
regulations: (i) all quarterly and annual financial reports on Forms 10-Q and
10-K, including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and, with respect to the annual information only, a
report on the annual financial statements by Cott's certified independent
accountants; and (ii) all current reports required to be filed with the
Commission on Form 8-K.
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If Cott has designated any of its Subsidiaries as Unrestricted
Subsidiaries with combined net assets exceeding 5% of Cott's consolidated net
assets, then the quarterly and annual financial information required by the
preceding paragraph shall include or be accompanied by a reasonably detailed
presentation of the financial condition and results of operations of Cott and
its Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of Cott.
In addition, following the consummation of the Exchange Offer,
whether or not required by the rules and regulations of the Commission, Cott
shall file a copy of all of the information and reports referred to in clauses
(i) and (ii) above with the Commission for public availability within the time
periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request.
(b) Cott, the Issuer and the other Guarantors shall furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
SECTION 4.4. Compliance Certificate
(a) The Issuer and each Guarantor (to the extent that such Guarantor
is so required under the TIA) shall deliver to the Trustee, within 90 days after
the end of each fiscal quarter, an Officers' Certificate stating that a review
of the activities of the Issuer and its Subsidiaries during the preceding fiscal
quarter has been made under the supervision of the signing Officers with a view
to determining whether the Issuer and each Guarantor has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Issuer or applicable Guarantor, as the case may be, 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 the Issuer or such
Guarantor, as the case may be, 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
or interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Issuer or applicable Guarantor, as
the case may be, is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.3(a) above shall be accompanied by a
written statement of the Issuer'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 the Issuer has violated any
provisions of Article IV or Article V 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.
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(c) The Issuer 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 the Issuer is taking or proposes to take with respect
thereto.
SECTION 4.5. Taxes
Cott 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 or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
SECTION 4.6. Stay, Extension and Usury Laws
Each of the Issuer and the Guarantors covenants (to the extent that
it may lawfully do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Issuer and each Guarantor (to the extent that they may lawfully do so) hereby
expressly waive all benefit or advantage of any such law, and covenant that they
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 4.7. Restricted Payments
Cott 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 Cott's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment in
connection with any merger or consolidation involving Cott or any of its
Restricted Subsidiaries) or to the direct or indirect holders of Cott'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 Cott or to Cott or a Restricted Subsidiary of Cott); (ii)
purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving Cott) any
Equity Interests of Cott or any direct or indirect parent of Cott; (iii) make
any voluntary or optional payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Notes or the Guarantees; or (iv) make any Restricted
Investment (all such payments and other actions set forth in these 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 has occurred and is continuing or
would occur as a consequence of such Restricted Payment; and
(b) Cott 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
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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 4.9; and
(c) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by Cott and its Restricted Subsidiaries after
the date of this Indenture (excluding Restricted Payments permitted by clauses
(ii) through (vii) and (ix) of the next succeeding paragraph), is less than the
sum, without duplication, of: (i) 50% of the Consolidated Net Income of Cott for
the period (taken as one accounting period) from October 1, 2001 to the end of
Cott'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 Cott or
a Restricted Subsidiary since the date of the Indenture as a contribution to its
common equity capital or from the issue or sale of Equity Interests of Cott
(other than Disqualified Stock) or from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or exchangeable debt securities
of Cott or a Restricted Subsidiary that have been converted into or exchanged
for such Equity Interests of Cott (other than Equity Interests (or Disqualified
Stock or debt securities) sold to a Subsidiary of Cott), 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 any loan or advance is
repaid for cash, the cash return of capital (including cash dividends to the
extent not included in the Consolidated Net Income) with respect to such
Restricted Investment (less the cost of disposition, if any), plus (iv) to the
extent that an entity in which Cott or a Restricted Subsidiary has made an
Investment using amounts under this paragraph (c) thereafter becomes a
Restricted Subsidiary, the fair market value of Cott's Investment in such entity
as of the date it becomes a Restricted Subsidiary, plus (v) to the extent that
any Unrestricted Subsidiary of Cott is redesignated as a Restricted Subsidiary
after the date of the indenture, the lesser of (a) the fair market value of
Cott's Investment in such Subsidiary as of the date of such redesignation or (b)
such fair market value as of the date on which such Subsidiary was originally
designated as an Unrestricted Subsidiary.
So long as no Default or Event of Default (except with respect to
clauses (ii), (v), (vii) and (viii) below) has occurred and is continuing or
would be caused thereby, the preceding provisions shall not prohibit: (i) the
payment of any dividend within 60 days after the date of declaration of the
dividend, if at the date of declaration the dividend payment would have complied
with the provisions of this Indenture; (ii) the redemption, repurchase,
retirement, defeasance or other acquisition of any Indebtedness which is
subordinated to Cott, the Issuer or any other Guarantor or of any Equity
Interests of Cott in exchange for, or out of the Net Cash Proceeds of the
substantially concurrent sale (other than to a Subsidiary of Cott) of, Equity
Interests of Cott (other than 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 Indebtedness which is subordinated to the
Notes or the Guarantees of Cott, the Issuer or any other Guarantor with the Net
Cash Proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the
payment of any dividend or other distribution by a Restricted Subsidiary of Cott
to the holders of its Equity Interests so long as the Company or such Restricted
Subsidiary receives at least its share of such dividend or distribution in
accordance with its Equity Interests; (v) the repurchase, redemption or other
acquisition or
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retirement for value of any Equity Interests of Cott or any Restricted
Subsidiary held by any member of Cott's (or any of its Restricted Subsidiaries')
management pursuant to any management equity subscription agreement, stock
option agreement or similar agreement or program or other employee benefit plan;
provided that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $2.5 million in any
calendar year (with unused amounts in any calendar year being carried over to
succeeding calendar years subject to a maximum of $3.5 million in any calendar
year); (vi) the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary; provided that (x) the assets of such Restricted Subsidiary
immediately prior to such designation consists only of operations in the United
Kingdom, (y) the total assets of such Restricted Subsidiary less all liabilities
of such Restricted Subsidiary (other than liabilities for which Cott, the Issuer
or any Restricted Subsidiary will be liable immediately after such designation)
is less than 15% of Cott's total consolidated assets less total consolidated
liabilities (on the most recently available quarterly or annual consolidated
balance sheet of Cott prepared in conformity with GAAP), provided further, that
the net assets of such Restricted Subsidiary may exceed 15% of Cott's net assets
to the extent that Cott would be permitted to make a Restricted Payment in an
amount equal to such excess and (z) immediately prior to and after giving effect
to such designation, Cott could incur at least $1 of additional Indebtedness
under the first paragraph under Section 4.9 as if the Fixed Charge Coverage
Ratio were 2.75 to 1; (vii) the conversion of any preferred stock of Cott into
common Equity Interests of Cott; (viii) cash dividends on the Convertible
Participating Voting Second Preferred Shares Series 1 of Cott paid in accordance
with terms thereof on the date of this Indenture in the event the maximum number
of shares of common stock that may be issued upon conversion thereof is reached,
in an amount not to exceed $6.0 million in any one year; and (ix) other
Restricted Payments in an aggregate amount since the date of this Indenture not
to exceed $25.0 million.
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 Cott or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. If the fair
market value of any assets or securities that are required to be valued by this
Section 4.7 exceeds $15.0 million, such transaction will be approved by the
Board of Directors whose resolution with respect thereto shall be delivered to
the Trustee; provided that the Board of Directors' approval in the event of a
Restricted Payment that is not an Investment must 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 $15.0 million. Not later
than the date of making any Restricted Payment in excess of $15.0 million, Cott
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 this Section 4.7 were computed, together with a copy of
any fairness opinion or appraisal required by this Indenture.
The Board of Directors of Cott may designate any Restricted
Subsidiary other than the Issuer to be an Unrestricted Subsidiary if such
designation would not cause a Default. For purposes of making such
determination, the aggregate fair market value of all outstanding Investments by
Cott and its Restricted Subsidiaries in the Subsidiary so designated shall be
deemed to be Restricted Payments at the time of such designation and will reduce
the amount available for Restricted Payments under this Section 4.7 or the
definition of "Permitted Investments" as determined by Cott. Such designation
will only be permitted if the Investment
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would be permitted at such time and if such Restricted Subsidiary otherwise
meets the definition of an Unrestricted Subsidiary.
Any designation of a Subsidiary of Cott as an Unrestricted
Subsidiary by the Board of Directors shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the resolution of the Board of Directors of
the Company giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the terms of the Indenture
governing the designation of Unrestricted Subsidiaries and was permitted by this
Section 4.7. If, at any time, any Unrestricted Subsidiary (other than Northeast
Xxxxx Inc. or any of its Subsidiaries) fails to meet the foregoing requirements
as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture. Any Indebtedness of such Restricted
Subsidiary that has ceased to be an Unrestricted Subsidiary pursuant to the
preceding sentence shall be deemed to be incurred by a Restricted Subsidiary of
Cott as of such date and, if such Indebtedness is not permitted to be incurred
as of such date under Section 4.9, Cott shall be in default of such covenant. In
addition, in the event Cott or any of its Restricted Subsidiaries enters into a
transaction with Northeast Xxxxx Inc. or any of its Subsidiaries such that the
holders of Indebtedness of Northeast Xxxxx Inc. or any of its Subsidiaries have
recourse to Cott and its Restricted Subsidiaries as a result of such
transaction, Cott and its Restricted Subsidiaries shall be deemed to be in
default under Section 4.9. The Board of Directors of Cott 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 Cott of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (i) such
Indebtedness is permitted under Section 4.9 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period and (ii) no Default or Event of Default would be in existence
following such designation.
SECTION 4.8. Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries
Cott 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 consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to: (i) pay dividends or make any other
distributions on its Capital Stock to Cott or any of its Restricted
Subsidiaries, or with respect to any other interest or participation in, or
measured by, its profits, or pay any Indebtedness owed to Cott or any of its
Restricted Subsidiaries; (ii) make loans or advances to Cott or any of its
Restricted Subsidiaries; or (iii) transfer any of its properties or assets to
Cott or any of its Restricted Subsidiaries, except for:
(a) agreements governing Existing Indebtedness and Credit Facilities
as in effect on the date of this Indenture and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of those agreements, provided that the amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are no more restrictive, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in those agreements
on the date of the Indenture;
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(b) this Indenture, the Notes and the Guarantees;
(c) applicable law;
(d) any instrument governing Indebtedness or Capital Stock of a
Person acquired by Cott or any of its Restricted Subsidiaries as in effect at
the time of such acquisition (except to the extent such Indebtedness or Capital
Stock 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 of this Indenture to be incurred;
(e) customary non-assignment provisions in leases entered into in
the ordinary course of business and consistent with past practices;
(f) purchase money obligations for property (real or personal,
tangible and intangible) acquired in the ordinary course of business that impose
restrictions on that property of the nature described in clause (iii) of the
preceding paragraph;
(g) any agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by that Restricted Subsidiary pending
its sale or other disposition;
(h) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive, taken as a whole, than those contained in
the agreements governing the Indebtedness being refinanced;
(i) Liens securing Indebtedness otherwise permitted to be incurred
under the provisions of Section 4.12 that limit the right of the debtor to
dispose of the assets subject to such Liens;
(j) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, assets sale agreements, stock
sale agreements and other similar agreements;
(k) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(l) Indebtedness permitted to be incurred by Foreign Restricted
Subsidiaries under Section 4.9; provided that all such restrictions in the
aggregate restrict no more than 10% of the Consolidated Cash Flow of Cott and
its Restricted Subsidiaries; and
(m) any Credit Facilities of Cott, the Issuer or a Guarantor in
effect after the date of this Indenture that are permitted to be incurred by
this Indenture, to the extent its provisions are substantially no more
restrictive with respect to such dividend, distribution or other payment
restriction and loan or investment restriction than those contained in the
Credit Agreement as in effect on the date of this Indenture.
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SECTION 4.9. Incurrence of Indebtedness and Issuance of Preferred
Stock
Cott shall not, and shall not permit any of its Restricted
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 Cott and the Issuer shall not issue any Disqualified Stock and shall
not permit any of their Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that Cott, the Issuer and any Restricted Subsidiary
may incur Indebtedness (including Acquired Debt), Cott and the Issuer may issue
Disqualified Stock and Restricted Subsidiaries of Cott that are Guarantors may
issue preferred stock, if the Fixed Charge Coverage Ratio for Cott'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 or preferred 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 or preferred stock had
been issued, as the case may be, at the beginning of such four quarter period;
provided further that no more than $50.0 million of Indebtedness under this
paragraph may be incurred by Restricted Subsidiaries that are not Guarantors so
long as such Restricted Subsidiaries are Foreign Restricted Subsidiaries.
The first paragraph of this Section 4.9 shall not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by Cott, the Issuer and any Restricted Subsidiary
of additional Indebtedness and letters of credit under one or more Credit
Facilities in an aggregate principal amount at any one time outstanding under
this clause (i) (with letters of credit being deemed to have a principal amount
equal to the face amount thereunder) not to exceed the greater of (a) $225.0
million and (b) the sum of (x) 80% of the net book value of the non-Affiliate
accounts receivable of the Person incurring such Indebtedness and its Restricted
Subsidiaries and (y) 50% of the total Eligible Inventory of the Person incurring
such Indebtedness and its Restricted Subsidiaries, in each case determined in
accordance with GAAP, less in either case, the aggregate amount of commitment
reductions resulting from the application of proceeds from Asset Sales since the
date of this Indenture; provided, however, that no more than $50.0 million of
Indebtedness under this clause (i) may be incurred by Restricted Subsidiaries
that are not Guarantors so long as such Restricted Subsidiaries are Foreign
Restricted Subsidiaries;
(ii) the incurrence by Cott and its Restricted Subsidiaries of
Existing Indebtedness;
(iii) the incurrence by Cott, the Issuer and the Guarantors of
Indebtedness represented by the Notes in an aggregate principal amount of up to
$275.0 million outstanding on the date of this Indenture and the related
Guarantees to be issued on the date of this Indenture and the Exchange Notes and
the related Guarantees to be issued pursuant to the Registration Rights
Agreement;
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(iv) the incurrence by Cott, the Issuer and any Restricted
Subsidiary 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 or other assets used in or acquired
in connection with the business of Cott, the Issuer or any Restricted
Subsidiary, in an aggregate principal amount not to exceed $75.0 million at any
time outstanding; provided, however, that no more than $50.0 million of
Indebtedness under this clause (iv) may be incurred by Restricted Subsidiaries
that are not Guarantors so long as such Restricted Subsidiaries are Foreign
Restricted Subsidiaries;
(v) the incurrence by Cott 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 (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under the
first paragraph of this covenant or clauses (ii), (iii), (iv), (v), or (x) of
this paragraph;
(vi) the incurrence by Cott or any of its Restricted Subsidiaries of
intercompany Indebtedness or issuance of Disqualified Stock or preferred stock
between or among Cott and any of its Restricted Subsidiaries; provided, however,
that: (a) if Cott, the Issuer or any Guarantor is the obligor on such
Indebtedness, such Indebtedness is expressly subordinated to the prior payment
in full in cash of all Obligations with respect to the Notes, in the case of the
Issuer, or the Guarantees, in the case of a Guarantor; and (b) (1) any
subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than Cott or a Restricted Subsidiary
of Cott and (2) any sale or other transfer of any such Indebtedness to a Person
that is not either Cott or a Restricted Subsidiary of Cott, will be deemed, in
each case, to constitute an incurrence of such Indebtedness by Cott or such
Restricted Subsidiary, as the case may be, that was not permitted by this clause
(vi);
(vii) the incurrence by Cott or any of its Restricted Subsidiaries
of (a) Hedging Obligations, (b) Indebtedness in respect of performance, surety
or appeal bonds in the ordinary course of business or (c) Indebtedness arising
from agreements providing for indemnification, adjustment of purchase price or
similar obligations, or from Guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of Cott or any of its Restricted
Subsidiaries pursuant to such agreements, in each case Incurred in connection
with the disposition of any business, assets or Restricted Subsidiary of Cott
(other than Guarantees of Indebtedness Incurred by any Person acquiring all or
any portion of such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition), in a principal amount not to exceed the gross
proceeds actually received by Cott or any Restricted Subsidiary in connection
with such disposition;
(viii) the guarantee by Cott, the Issuer or any of the Guarantors of
Indebtedness of Cott or any Restricted Subsidiary that was permitted to be
incurred by another provision of this Section 4.9;
(ix) the accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in the form
of additional Indebtedness with the same terms, and the payment of dividends on
Disqualified Stock in the form of
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additional shares of the same class of Disqualified Stock will not be deemed to
be an incurrence of Indebtedness or an issuance of Disqualified Stock for
purposes of this Section 4.9; provided, in each such case, that the amount
thereof is included in Fixed Charges of Cott as accrued; and
(x) the incurrence by Cott or any of its Restricted Subsidiaries of
additional Indebtedness 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 Indebtedness incurred
pursuant to this clause (x), not to exceed $50.0 million.
For purposes of determining compliance with this Section 4.9 in the
event that an item of proposed Indebtedness (including Acquired Debt) meets the
criteria of more than one of the categories of Permitted Debt described in
clauses (i) through (x) above as of the date of incurrence thereof, or is
entitled to be incurred pursuant to the first paragraph of this Section 4.9 as
of the date of incurrence thereof, Cott shall be permitted to classify or later
classify (or reclassify in whole or in part in its sole discretion) such item of
Indebtedness in any manner that complies with this Section 4.9 and such item of
Indebtedness shall be treated as having been incurred pursuant to only one of
such clauses or pursuant to the first paragraph hereof. Accrual of interest, the
accretion of accreted value and the payment of interest in the form of
additional Indebtedness will not be deemed to be an incurrence of Indebtedness
for purposes of this covenant.
SECTION 4.10. Asset Sales
Cott shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless: (i) Cott (or the Restricted
Subsidiary, as the case may be) receives consideration at the time of the Asset
Sale at least equal to the fair market value of the assets or Equity Interests
issued or sold or otherwise disposed of; (ii) for each Asset Sale where
consideration exceeds $7.5 million, such Asset Sale is approved by Cott's Board
of Directors and evidenced by a Board Resolution; and (iii) at least 75% of the
consideration therefore received in the Asset Sale by Cott or such Restricted
Subsidiary, as the case may be, is in the form of cash provided that the
following shall be deemed to be cash for purposes of this provision: amount of
(x) any liabilities, as shown on Cott's or such Restricted Subsidiary's most
recent balance sheet, of Cott or such Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Notes or any Guarantee) that are assumed by the transferee of any such
assets pursuant to a customary novation agreement that releases Cott or such
Restricted Subsidiary from further liability; and (y) any securities, notes or
other obligations received by Cott or any such Restricted Subsidiary from such
transferee that are contemporaneously, subject to ordinary settlement periods,
converted by Cott or such Restricted Subsidiary into cash, to the extent of the
cash received in that conversion.
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, Cott or such Restricted Subsidiary shall apply such Net Proceeds at its
option: (i) to repay Senior Debt and, if the Senior Debt repaid is revolving
credit Indebtedness, to correspondingly permanently reduce the commitments with
respect thereto; (ii) to acquire all or substantially all of the assets of, or a
majority of the Voting Stock of, another Permitted Business; (iii) to make a
capital expenditure; or (iv) to acquire other long-term assets that are used or
useful in a Permitted Business; provided, that Cott or the Restricted Subsidiary
shall have complied with clause (ii),
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(iii) or (iv) if, within 360 days of such Asset Sale, Cott or the Restricted
Subsidiary shall have commenced the expenditure or acquisition, or entered into
a binding agreement with respect to the expenditure or acquisition in compliance
with clause (ii), (iii) or (iv), and that expenditure or acquisition is
completed within a date one year and six months after the date of the Asset
Sale; and provided further that if any such expenditure or acquisition is
abandoned after the date that is one year after the Asset Sale, Cott or the
Restricted Subsidiary will immediately apply the Net Proceeds in accordance with
clause (i) above.
Pending the final application of any Net Proceeds, Cott may
temporarily reduce revolving credit borrowings or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested
as provided in the second preceding paragraph shall be deemed to constitute
"Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0
million, the Issuer shall be required to make an offer (an "Asset Sale Offer")
to all Holders of Notes and to the extent required by the terms of other senior
subordinated Indebtedness to all holders of other senior subordinated
Indebtedness outstanding with similar provisions requiring the Company to make
an offer to purchase such senior subordinated Indebtedness with the proceeds
from any Asset Sale ("Pari Passu Notes") to purchase the maximum principal
amount of Notes and any such Pari Passu Notes to which the Asset Sale Offer
applies that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount of the Notes and such
Pari Passu Notes plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the date of purchase, in accordance with the procedures set
forth in this Indenture and the agreements governing the Pari Passu Notes, as
applicable. To the extent that the aggregate amount of Notes and Pari Passu
Notes tendered pursuant to an Asset Sale Offer, is less than the Excess
Proceeds, Cott may use any remaining Excess Proceeds for any purpose not
prohibited by this Indenture. If the aggregate principal amount of Notes
surrendered by Holders thereof and other Pari Passu Notes surrendered by holders
thereof or lenders, collectively exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and Pari Passu Notes to be purchased pro rata
based on the aggregate principal amount of tendered Notes and Pari Passu Notes.
Upon completion of such offer to purchase the amount of Excess Proceeds shall be
reset at zero.
The Issuer 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 Notes and Pari Passu Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with
the Asset Sale provisions of this Indenture, the Issuer shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under the Asset Sale provisions of this Indenture by
virtue thereof.
SECTION 4.11. Transactions With Affiliates
Cott 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 of
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any such person (each of the foregoing, an "Affiliate Transaction"), unless: (i)
such Affiliate Transaction is on terms that are no less favorable to Cott or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by Cott or such Restricted Subsidiary with an unrelated
Person; and (ii) Cott delivers to the Trustee: (a) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $5.0 million, a Board Resolution 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 disinterested members of the Board of Directors; and (b) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $10.0 million, an opinion as to
the fairness to Cott, the Issuer or Restricted Subsidiary, as applicable, of
such Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing provided
that none of the following shall be deemed to be Affiliate Transactions: (i) any
employment agreement entered into by Cott or any of its Restricted Subsidiaries
in the ordinary course of business; (ii) transactions between or among Cott
and/or its Restricted Subsidiaries; (iii) transactions with a Person that is an
Affiliate of Cott or an Affiliate of a Restricted Subsidiary solely because Cott
or such Restricted Subsidiary controls such Person; (iv) payment of reasonable
directors fees; (v) sales of Equity Interests (other than Disqualified Stock) of
Cott; (vi) Restricted Payments that are permitted by Section 4.7; (vii) any
payments or other transactions pursuant to any tax-sharing agreement between
Cott and any other Person with which Cott files a consolidated tax return or
with which Cott is part of a consolidated group for tax purposes; (viii) sales
of inventory to, or other ordinary course transactions with, a joint venture or
business combination in which Cott or a Restricted Subsidiary is an equity
holder or other party; provided that the aggregate amount of all such
transactions or series of related transactions do not exceed $7.5 million in any
fiscal year; and (ix) agreements entered into with Permitted Holders in
existence as of the date of this Indenture.
SECTION 4.12. Liens
Cott shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or otherwise
cause or suffer to exist or become effective any Lien (other than Liens securing
obligations among Cott or any of its Restricted Subsidiaries) that secures
obligations under any Indebtedness which is pari passu with or subordinated to
the Notes or the Guarantees, unless the notes and the Guarantees are equally and
ratably secured with the obligations so secured or until such time as such
obligations are no longer secured by a Lien.
SECTION 4.13. Business Activities
Cott and its Restricted Subsidiaries, taken as a whole, will not, as
a primary business line, engage in any business other than Permitted Businesses.
SECTION 4.14. Corporate Existence
Subject to Article V hereof, Cott and the Issuer 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 their respective Significant Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from
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time to time) of Cott, the Issuer and their respective Significant Subsidiaries;
provided, however, that Cott and the Issuer shall not be required to preserve
the corporate, partnership or other existence of any of their respective
Significant Subsidiaries, if Cott and the Issuer shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
Cott, the Issuer and their respective Subsidiaries, taken as a whole.
SECTION 4.15. Offer to Repurchase Upon Change of Control Triggering
Event
(a) Upon the occurrence of a Change of Control Triggering Event,
each Holder of Notes will have the right to require the Issuer 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 in this Section 4.15 (the "Change of
Control Offer") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the date of purchase (the "Change of Control Payment").
Within 10 days following any Change of Control Triggering Event, the Issuer will
mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control Triggering Event and offering to repurchase
Notes on the date specified in such notice (the "Change of Control Payment
Date"), which date shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed, pursuant to the procedures required by this
Indenture and described in such notice. The Issuer will 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 Triggering Event. To the extent that the provisions of any
securities laws or regulations conflict with the Change of Control Triggering
Event provisions of this Section, the Issuer shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under the provisions hereunder by virtue of such conflict.
(b) On a Change of Control Payment Date, the Issuer shall, to the
extent lawful, (i) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (ii) 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 (iii) 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
the Issuer. The Paying Agent shall 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 shall be in a
principal amount of $1,000 or an integral multiple thereof. Prior to complying
with the provisions of this Section 4.15, but in any event within 90 days
following a Change of Control Triggering Event, Cott, the Issuer and the other
Guarantors will either repay all outstanding Senior Debt or obtain the requisite
consents, if any, under all agreements governing outstanding Senior Debt to
permit the repurchase of Notes required by this Section 4.15. The Issuer shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The Change of Control provisions described above shall be applicable
whether or not other provisions of this Indenture are applicable.
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(c) The Issuer shall not be required to make a Change of Control
Offer upon a Change of Control Triggering Event if a third party makes the
Change of Control Offer in a manner, at the times and otherwise in compliance
with the requirements set forth in this Section 4.15 and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer.
SECTION 4.16. No Senior Subordinated Debt
The Issuer shall not incur, create, issue, assume, guarantee or
otherwise become liable directly or indirectly for any Indebtedness that is
contractually subordinate or junior in right of payment to any Senior Debt of
the Issuer and senior in any respect in right of payment to the Notes. No
Guarantor will incur, create, issue, assume, guarantee or otherwise become
liable for any Indebtedness that is contractually subordinate or junior in right
of payment to the Senior Debt of such Guarantor and senior in any respect in
right of payment to such Guarantor's Guarantee.
SECTION 4.17. Additional Subsidiary Guarantees
If Cott or any of its Restricted Subsidiaries acquires or creates
another Domestic Subsidiary after the date of this Indenture, then that newly
acquired or created Domestic Subsidiary shall become a Guarantor and execute a
supplemental indenture in the form of Exhibit D; provided, however, that the
foregoing shall not apply to subsidiaries that have properly been designated as
Unrestricted Subsidiaries in accordance with this Indenture for so long as they
continue to constitute Unrestricted Subsidiaries.
SECTION 4.18. Payments for Consent
Cott shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration to or for the
benefit of any Holder of any Notes for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of this Indenture or the
Notes unless such consideration is offered to be paid and is paid to all Holders
of the Notes that consent, waive or agree to amend in the time frame set forth
in the solicitation documents relating to such consent, waiver or agreement.
SECTION 4.19. Sale and Leaseback Transactions
Cott shall not, and shall not permit of its Restricted Subsidiaries
to, enter into any sale and leaseback transaction involving any of its assets or
properties whether now owned or hereafter acquired, whereby Cott or a Restricted
Subsidiary sells or transfers such assets or properties and then or thereafter
leases such assets or properties or any part thereof or any other assets or
properties which Cott or such Restricted Subsidiary, as the case may be, intends
to use for substantially the same purpose or purposes as the assets or
properties sold or transferred.
The foregoing restriction shall not apply to any sale-leaseback
transaction if (i) the lease secures or relates to industrial revenue or
pollution control bonds; (ii) the transaction is between Cott and a Restricted
Subsidiary or between Restricted Subsidiaries; or (iii) such sale and leaseback
transaction complied with Section 4.10.
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ARTICLE V
SUCCESSORS
SECTION 5.1. Merger, Consolidation, or Sale or Lease of Assets i)
Neither Cott nor the Issuer shall, directly or indirectly, (1) consolidate or
merge with or into (whether or not Cott or the Issuer, as the case may be, is
the surviving corporation), or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of Cott or the
Issuer, as the case may be, and their respective Restricted Subsidiaries, taken
as a whole, in one or more related transactions, to another Person unless (i)
either (a) Cott or the Issuer, as the case may be, is the surviving corporation
or (b) the Person formed by or surviving any such consolidation or merger (if
other than Cott or the Issuer, as the case may be,) or to which such sale,
assignment, transfer, conveyance or other disposition shall have been made is a
Person organized or existing under the laws of the United States, any state
thereof or the District of Columbia or, in the case of Cott, Canada or any
province thereof; (ii) the Person formed by or surviving any such consolidation
or merger (if other than Cott or the Issuer, as the case may be) or the Person
to which such sale, assignment, transfer, conveyance or other disposition shall
have been made assumes all the obligations of Cott or the Issuer, as the case
may be, under the Registration Rights Agreement, the Notes and this Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee; (iii) immediately before and after such transaction no Default or Event
of Default shall have occurred; and (iv) Cott or the Issuer, as the case may be,
or the Person formed by or surviving any such consolidation or merger (if other
than Cott or the Issuer, as the case may be), or to which such sale, assignment,
transfer, conveyance or other disposition shall have been made will, immediately
after such transfer after giving pro forma effect thereto and any related
financing transactions as if the same had occurred at the beginning of the
applicable four-quarter 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 Section 4.9 hereof.
Neither Cott nor the Issuer shall directly or indirectly, lease all
or substantially all of its properties or assets, in one or more related
transactions, to any other Person.
(a) A Guarantor that is a Subsidiary of Cott shall not sell or
otherwise dispose of all or substantially all of its assets to, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving
Person), another Person, other than the Issuer or another Guarantor, unless:
(1) immediately after giving effect to that transaction, no Default
or Event of Default exists; and
(2) either:
(a) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger assumes all the obligations of that
Guarantor under this Indenture, its Guarantee and the Registration
Rights Agreement pursuant to a supplemental indenture in the form
attached as Exhibit D hereto; or
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(b) the Net Proceeds of such sale or other disposition are
applied in accordance with Section 4.0.
The Guarantee of a Guarantor that is a Subsidiary of Cott will be
released:
(1) in connection with any sale or other disposition of al or
substantially all of the assets of that Guarantor (including by way of merger or
consolidation) to a Person that is not (either before or after giving effect to
such transaction) a Subsidiary of Cott, if the sale or other disposition
complies with Section 4.10; or
(2) in connection with any sale of all of the Capital Stock of that
Guarantor to a Person that is not (either before or after giving effect to such
transaction) a Subsidiary of Cott, if the sale complies with Section 4.10;
(3) upon Legal Defeasance or Covenant Defeasance in accordance with
Article VIII;
(4) if Cott designates any Restricted Subsidiary that is a Guarantor
as an Unrestricted Subsidiary in accordance with the applicable provisions of
this Indenture; or
(5) if such Guarantor has no assets and Cott wishes to dissolve such
Guarantor.
SECTION 5.2. Successor Corporation Substituted
Upon any consolidation or merger, or any sale, assignment, transfer,
conveyance or other disposition of all or substantially all of the assets of
Cott or the Issuer in accordance with Section 5.1 hereof, the successor
corporation formed by such consolidation or into or with which Cott or the
Issuer is merged or to which such sale, assignment, transfer, 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, conveyance or other
disposition, the provisions of this Indenture referring to the "Issuer", as the
case may be, shall refer instead to the successor corporation and not to Cott or
the Issuer, as the case may be), and may exercise every right and power of such
entity under this Indenture with the same effect as if such successor Person had
been named as such entity herein; provided, however, that the predecessor entity
shall not be relieved from the obligation to pay the principal of and interest
on the Notes except in the case of a sale of all of the assets of Cott or the
Issuer, as the case may be, that meets the requirements of Section 5.1 hereof.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. Events of Default
An "Event of Default" occurs if:
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(a) the Issuer defaults in the payment when due of interest on, or
Liquidated Damages, if any, with respect to, the Notes and such default
continues for a period of 30 days, whether or not such payment is prohibited by
the provisions of Article X hereof;
(b) the Issuer defaults in the payment when due of principal of or
premium, if any, on the Notes, whether or not such payment is prohibited by the
provisions of Article X hereof;
(c) Cott or any of its Restricted Subsidiaries fail to comply with
any of the provisions of Section 4.7, Section 4.15 or Section 5.1 hereof;
(d) Cott or any of its Restricted Subsidiaries fail for 30 days
after notice to the Issuer from the Trustee or to the Issuer and the Trustee
from the Holders of at least 25% in principal amount of the Notes then
outstanding to comply with the provisions of Sections 3.9, 4.9 or 4.10;
(e) Cott or any of its Restricted Subsidiaries fail to observe or
perform any other covenant or other agreement in this Indenture or the Notes for
60 days after notice to the Issuer from the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding;
(f) Cott or any of its Restricted Subsidiaries defaults 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 Cott or
any of its Restricted Subsidiaries (or the payment of which is guaranteed by
Cott or any of its Restricted Subsidiaries) whether such Indebtedness or
Guarantee now exists, or is created after the date of this Indenture, which
default (a) is caused by a failure to pay principal of or 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 without duplication $10.0 million or more;
(g) Cott or any of its Restricted Subsidiaries fail to pay final
judgments aggregating in excess of $10.0 million which judgments are not paid,
discharged or stayed for a period of 60 days;
(h) Cott, the Issuer or any other Restricted Subsidiary pursuant to
or within the meaning of Bankruptcy Law:
(i) commence a voluntary case,
(ii) consent to the entry of an order for relief against them
in an involuntary case,
(iii) consent to the appointment of a Custodian of them or for
all or substantially all of their property,
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(iv) make a general assignment for the benefit of their
creditors, or
(v) generally are not paying their debts as they become due;
or
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law, and the order or decree remains unstayed and in effect
for 60 consecutive days, that:
(i) is for relief against Cott, the Issuer or any other
Restricted Subsidiary in an involuntary case;
(ii) appoints a Custodian of Cott, the Issuer or any other
Restricted Subsidiary or for all or substantially all of the property of
the Issuer or any of its Subsidiary; or
(iii) orders the liquidation of Cott, the Issuer or any other
Restricted Subsidiary; or
(j) except as permitted by this Indenture, any Guarantee is held in
any judicial proceeding to be unenforceable or invalid or ceases for any reason
to be in full force and effect or any Guarantor, or any Person acting on behalf
of any Guarantor, denies or disaffirms its obligations under its Guarantee.
SECTION 6.2. 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, by
notice to the Issuer and the Trustee, may declare all the Notes to be due and
payable immediately. Notwithstanding the foregoing, if an Event of Default
specified in clause (h) or (i) of Section 6.1 hereof occurs with respect to Cott
or any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries
that, taken together, would constitute a Significant Subsidiary, all outstanding
Notes shall be 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. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest or Liquidated Damages) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the then outstanding Notes by notice
to the Trustee may on behalf of the Holders of all of the Notes rescind an
acceleration and its consequences if (i) the rescission would not conflict with
any judgment or decree, (ii) all existing Events of Default (except nonpayment
of principal, interest or premium that has become due solely because of the
acceleration) have been cured or waived, and (iii) the Issuer has paid to the
Trustee all amounts due to Trustee pursuant to Section 7.7.
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 or Default and its consequences
under this Indenture except a
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continuing Default or Event of Default in the payment of interest on, or the
principal of, the Notes.
In the case of any Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) on behalf of the Issuer with
the intention of avoiding payment of the premium that the Issuer would have had
to pay if the Issuer then had elected to redeem the Notes pursuant to the
optional redemption provisions of this Indenture, 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
December 15, 2006 by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Issuer with the intention of avoiding the
prohibition on redemption of the Notes prior to December 15, 2006, then a
premium equal to the interest rate on the Notes shall also become immediately
due and payable to the extent permitted by law upon the acceleration of the
Notes.
The Issuer is required to deliver to the Trustee annually a written
statement regarding compliance with this Indenture, and the Issuer is required
upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a written statement specifying such Default or Event of Default.
SECTION 6.3. Other Remedies
If an Event of Default occurs and is continuing, the Trustee, in its
sole discretion, 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.
SECTION 6.4. Waiver of Past Defaults
Subject to Section 6.2, Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes by written notice to
the Trustee may on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its consequences hereunder, except a continuing
Default or Event of Default in the payment of the principal of, premium and
Liquidated Damages, if any, or interest on, the Notes (including in connection
with an offer to purchase) (provided, however, that the Holders of a majority in
aggregate principal amount of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration). Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereon.
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SECTION 6.5. Control by Majority
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 or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or 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. The Trustee may take any other action
consistent with this Indenture relating to any such direction.
SECTION 6.6. 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;
(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 security and 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
security and 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.
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 6.7. 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 and Liquidated
Damages, if any, and interest 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 6.8. Collection Suit By Trustee
If an Event of Default specified in Section 6.1(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as Trustee of an express trust against the Issuer 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
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extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
fees, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due to the Trustee under Section 7.7.
SECTION 6.9. 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, fees,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due to the Trustee under Section 7.7) and the Holders of the
Notes allowed in any judicial proceedings relative to the Issuer (or any other
obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable
or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the compensation, fees, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under or in connection
with this Indenture. To the extent that the payment of any such reasonable
compensation, fees, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under or in connection
with this Indenture out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a perfected, first
priority 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, and such Lien in favor of a
predecessor Trustee shall be senior to the Lien in favor of the current Trustee.
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, it shall
pay out the money in the following order:
First: to the Trustee (including any predecessor Trustee), its
agents and attorneys for amounts due under Section 7.7 hereof, including payment
of all reasonable compensation, fees, expenses and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium and Liquidated Damages, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium and Liquidated Damages, if any and
interest, respectively; and
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Third: to the Issuer 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 does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in 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 and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(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 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;
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(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 6.5 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), (c), (e) and (f) of this Section.
(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 or direction of any Holders, unless such Holder shall have offered
and, if requested, provided 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 the Issuer. Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
SECTION 7.2. Rights of Trustee
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer personally or by agent or attorney.
(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. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith 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 the Issuer shall be sufficient if
signed by an Officer of the Issuer.
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(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 and, if requested,
provided to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
(g) No permissive right of the Trustee to act hereunder shall be
construed as a duty.
(h) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate, an Opinion of Counsel, or both.
(i) The Trustee shall not be charged with knowledge of any Default
or Event of Default with respect to the Notes unless either (1) a Responsible
Officer of the Trustee shall have actual knowledge of such Default of Event of
Default or (2) written notice of such Default or Event or Event of Default shall
have been given to the Trustee by the Issuer or by any Holder of the Notes.
SECTION 7.3. Individual Rights of Trustee
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Issuer or any
Affiliate of the Issuer 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 7.4. Trustee's Disclaimer
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture, the Notes or the Registration
Rights Agreement; it shall not be accountable for the Issuer's use of the
proceeds from the Notes or any money paid to the Issuer or upon the Issuer'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 7.5. Notice of Defaults
If a Default or Event of Default occurs and is continuing and if the
Trustee receives written notice thereof, the Trustee shall (at the expense of
the Issuer) 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 of principal of, premium, if any, Liquidated Damages, if any,
or interest on any Note, the Trustee may withhold the notice if and so long as a
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committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
SECTION 7.6. 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 (at the expense of the Issuer) 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)(2). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Issuer and filed with the Commission and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Issuer shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
SECTION 7.7. Compensation and Indemnity
The Issuer and each Guarantor jointly and severally agree to pay to
the Trustee from time to time compensation as agreed upon by the Trustee and the
Issuer, and, in the absence of any such agreement, reasonable compensation for
its acceptance of this Indenture and services hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer and the Guarantors shall reimburse the Trustee
promptly upon request for all disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Issuer and each Guarantor 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
the Issuer and the Guarantors (including this Section 7.7) and defending itself
against any claim (whether asserted by the Issuer, the Guarantors or any Holder
or any other person) or liability in connection with, relating to, or arising
out of (i) the exercise or performance of any of its powers or duties hereunder,
or in connection herewith, and (ii) the validity, invalidity, adequacy or
inadequacy of this Indenture, the Subsidiary Guarantees, the Notes or the
Registration Rights Agreement, except to the extent any such loss, liability or
expense may be attributable to its negligence or bad faith. The Trustee shall
notify the Issuer and the Guarantors promptly of any claim for which it intends
to seek indemnity. Failure by the Trustee to so notify the Issuer and the
Guarantors shall not relieve the Issuer and the Guarantors of their obligations
hereunder. The Issuer and the Guarantors may defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Issuer and the Guarantors shall pay the fees and expenses of such counsel. The
Issuer and the Guarantors need not pay for any settlement made without their
consent, which consent shall not be unreasonably withheld.
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The obligations of the Issuer and the Guarantors to the Trustee
under this Indenture shall survive the resignation or removal of the Trustee and
the satisfaction and discharge of this Indenture.
To secure the Issuer's and the Guarantors' payment obligations in
this Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the
resignation or removal of the Trustee and the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.1(h) or (i) 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 7.8. 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.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Issuer. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may by
a Board Resolution remove the Trustee if:
(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 as defined in Article VI 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, the Issuer 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 the Issuer.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the
Holders of Notes of at least 10% in
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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 receiving a written request by any Holder of a
Note who has been a bona fide Holder of a Note for at least six months, fails to
comply with Section 7.10, 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 the Issuer. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.7 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Issuer's obligations under Section 7.7 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.9. 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 Agent, as the case may be.
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 and that together with its direct parent, if any,
or in the case of a corporation included in a bank holding Issuer system, its
related bank holding Issuer, has a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall be subject
to TIA Section 310(b).
SECTION 7.11. Preferential Collection of Claims Against Issuer
The Trustee shall be 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.
SECTION 7.12. Other Capacities
All references in this Indenture to the Trustee shall be deemed to
refer to the Trustee in its capacity as Trustee and in its capacities as any
Agent, to the extent acting in such capacities, and every provision of this
Indenture relating to the conduct or affecting the liability
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or offering protection, immunity or indemnity to the Trustee shall be deemed to
apply with the same force and effect to the Trustee acting in its capacities as
any Agent.
ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant
Defeasance; Discharge
(a) The Issuer may, at its option and at any time, elect to have
either Section 8.2 or 8.3 hereof be applied to all outstanding Notes and the
Guarantees upon compliance with the conditions set forth below in this Article
VIII.
(b) The Issuer may terminate its obligations (and the obligations of
any Guarantor in respect of the Guarantees) under the Notes and this Indenture
(except those obligations referred to in the penultimate paragraph of this
Section 8.1(b)) if all such Notes thereto authenticated and delivered (except
lost, stolen or destroyed Notes that have been replaced or paid and Notes for
whose payment cash in United States dollars has theretofore been deposited in
trust or segregated and held in trust by the Issuer and thereafter repaid to the
Issuer, as provided in Section 8.6, or discharged from such trust) have been
delivered to the Trustee for cancellation and the Issuer has paid all sums
payable by it hereunder, or if (i) either (x) pursuant to Article III, the
Issuer shall have given notice to the Trustee and mailed a notice of redemption
to each Holder of the redemption of all of the Notes under arrangements
satisfactory to the Trustee for the giving of such notice or (y) all Notes have
otherwise become due and payable hereunder or will become due and payable within
one year, (ii) the Issuer or any Guarantor shall have irrevocably deposited or
caused to be deposited with the Trustee or a trustee satisfactory to the
Trustee, under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the benefit of
the Holders for that purpose, cash in United States dollars in such amount as is
sufficient without consideration of reinvestment of such interest, to pay
principal of, premium, if any, interest and Liquidated Damages, if any, on the
outstanding Notes to maturity or redemption; provided that the Trustee shall
have been irrevocably instructed to apply such deposit to the payment of said
principal, premium, if any, interest and Liquidated Damages, if any, with
respect to the Notes; (iii) no Default or Event of Default with respect to this
Indenture or the Notes shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit will not
result in a breach or violation of, or constitute a default under, any other
instrument to which the Issuer, any Guarantor or any or their respective
Restricted Subsidiaries is a party or by which any of such parties is bound;
(iv) the Issuer or any Guarantor shall have paid all other sums payable by it
hereunder; and (v) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the satisfaction and discharge of this Indenture have been
complied with. Such Opinion of Counsel shall also state that such satisfaction
and discharge does not result in a default under the Credit Agreement (if then
in effect) or any other agreement or instrument then known to such counsel that
binds or affects the Issuer or any Guarantor.
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Notwithstanding the foregoing paragraph, the Issuer's (and any
Guarantor's) obligations in Sections 2.5, 2.6, 2.7, 2.8, 4.1, 4.2, 7.7, 8.6 and
8.7 shall survive with respect to the Notes until the Notes are no longer
outstanding pursuant to the last paragraph of Section 2.8. After the Notes are
not longer outstanding, the Issuer's obligations in Sections 7.7, 8.6 and 8.7
shall survive.
(c) After such delivery or irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Issuer's obligations
(and the obligations of any Guarantors in respect of Guarantees of the Notes)
under the Notes and this Indenture with respect to the Notes except for those
surviving obligations specified above.
SECTION 8.2. Legal Defeasance and Discharge
Upon the Issuer's exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, the Issuer shall, subject to the satisfaction of
the conditions set forth in Section 8.4 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes and to
have each Guarantor's obligations discharged with respect to its Guarantee on
the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Issuer 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 8.5 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Issuer, 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 solely from the trust fund described in Section 8.4
hereof, and as more fully set forth in such Section, 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, (b) the Issuer's obligations with respect
to such Notes under Article II and Section 4.2 hereof, (c) the rights, powers,
trusts, duties and immunities of the Trustee and any Agent hereunder and the
Issuer's and Guarantors' obligations in connection therewith, including, without
limitation, Article VII and Section 8.5 and 8.7 hereunder, and (d) this Article
VIII. Subject to compliance with this Article VIII, the Issuer may exercise its
option under this Section 8.2 notwithstanding the prior exercise of its option
under Section 8.3 hereof.
SECTION 8.3. Covenant Defeasance
Upon the Issuer's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, the Issuer and each Guarantor shall, subject to
the satisfaction of the conditions set forth in Section 8.4 hereof, be released
from its obligations under the covenants contained in Sections 4.3, 4.7, 4.8,
4.9, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19, and 5.1 hereof with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.4 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
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Defeasance means that, with respect to the outstanding Notes, the Issuer may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.1 hereof, but, except as specified above,
the remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Issuer's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3 hereof, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, Sections 6.1(d) through 6.1(f)
hereof shall not constitute Events of Default.
SECTION 8.4. Conditions to Legal or Covenant Defeasance
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuer must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Notes, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest and Liquidated Damages, if any, on the outstanding Notes on the stated
maturity or on the applicable redemption date, as the case may be, and the
Issuer 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 8.2 hereof, the Issuer
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Issuer has received
from, or there has been published by, the Internal Revenue Service a ruling or
(B) since the date of this Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes
will not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, the Issuer
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that, subject to customary
assumptions and exclusions, the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a result of
such Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(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
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funds to be applied to such deposit) or insofar as Sections 6.1(h) or 6.1(i)
hereof 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 Indenture) to which the Issuer or any of its
Restricted Subsidiaries is a party or by which Cott or any of its Restricted
Subsidiaries is bound;
(f) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that (subject to customary qualifications and assumptions)
after the 91st day following the deposit, the trust funds will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally;
(g) the Issuer shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Issuer with the intent
of preferring the Holders of Notes over any other creditors of the Issuer or
with the intent of defeating, hindering, delaying or defrauding creditors of the
Issuer or others;
(h) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that, subject to customary
assumptions and exclusions, all conditions precedent provided for or relating to
the Legal Defeasance or the Covenant Defeasance have been complied with; and
(i) the Trustee shall have received such other documents, assurances
and Opinions of Counsel as the Trustee shall have reasonably required.
SECTION 8.5. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions
Subject to Section 8.6 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 8.5, the
"Trustee") pursuant to Section 8.4 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 the Issuer acting as Paying Agent), to the
Holders of such Notes of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not be segregated
from other funds except to the extent required by law.
The Issuer and the Guarantors jointly and severally agree to 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 8.4 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 VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the request of
the Issuer any money or non-callable Government Securities held by it as
provided in Section 8.4 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
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certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(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 8.6. Repayment to Issuer
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuer in trust for the payment of the principal of, premium, if
any, Liquidated Damages, if any, or interest on any Note and remaining unclaimed
for two years after such principal, and premium, if any, Liquidated Damages, if
any, or interest has become due and payable shall be paid to the Issuer on its
request or (if then held by the Issuer) shall be discharged from such trust; and
the Holder of such Note shall thereafter, as a creditor, look only to the Issuer
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer 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 the
Issuer 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 after the
date of such notification or publication, any unclaimed balance of such money
then remaining will be promptly repaid to the Issuer.
SECTION 8.7. Reinstatement
If the Trustee or Paying Agent is unable to apply any United States
dollars or noncallable Government Securities in accordance with Section 8.2 or
8.3 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 Issuer's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is
permitted by such court or governmental authority to apply all such money in
accordance with Section 8.2 or 8.3 hereof, as the case may be; provided,
however, that, if the Issuer makes any payment of principal of, premium, if any,
Liquidated Damages, if any, or interest on any Note following the reinstatement
of its obligations, the Issuer 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 IX
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1. Without Consent of Holders of Notes
Notwithstanding Section 9.2 of this Indenture, the Issuer, the
Guarantors and the Trustee may amend or supplement this Indenture, the
Guarantees or the Notes without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
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(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes or to alter the provisions of Article II hereof (including
the related definitions) in a manner that does not, as evidenced by an Opinion
of Counsel delivered to the Trustee, adversely affect any Holder;
(c) to provide for the assumption of the obligations of the Issuer,
Cott or any other Guarantor to the Holders of the Notes by a successor to the
Issuer, Cott or any Guarantor pursuant to Article V hereof;
(d) to add additional Guarantees with respect to the Notes,
including any new Guarantee Agreements;
(e) 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
(f) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA.
Upon the request of the Issuer accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 7.2 hereof,
the Trustee shall join with the Issuer 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.
SECTION 9.2. With Consent of Holders of Notes
Except as provided below in this Section 9.2, the Issuer, the
Guarantors and the Trustee may amend or supplement this Indenture, the Notes and
the Guarantees with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding voting as a single class
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for the Notes), and, subject to Sections
6.4 and 6.7 hereof, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of, premium, if any,
Liquidated Damages, if any, or interest on the Notes, except a payment default
resulting from an acceleration that has been rescinded) or compliance with any
provision of this Indenture, the Notes or the Guarantees may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Notes voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes). Without the
consent of at least 75% in principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, such Notes), no waiver or amendment to this Indenture may
make any change in the provisions of Sections 3.9, 4.10 or 4.15 hereof that, as
evidenced by an Opinion of Counsel delivered to the Trustee, adversely affects
the rights of any Holder of Notes. In addition, any amendment to the provisions
of Article X hereof will require the consent of the Holders of at least 75% in
aggregate principal amount of the Notes then outstanding if such amendment would
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adversely affect the rights of Holders of the Notes. Section 2.8 hereof shall
determine which Notes are considered to be "outstanding" for purposes of this
Section 9.2.
Upon the request of the Issuer accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by 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 9.6 hereof, the Trustee shall join with the
Issuer in the execution of such amended or supplemental Indenture unless such
amended or supplemental Indenture directly affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but 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 9.2 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 becomes
effective, the Issuer shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuer 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 6.4 and 6.7 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a
single class may waive compliance in a particular instance by the Issuer with
any provision of this Indenture or the Notes. However, without the consent of
each Holder affected, an amendment or waiver under this Section 9.2 may not
(with respect to any Notes 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 or waive any of the provisions with respect to the redemption of the
Notes except as provided above with respect to Sections 3.9, 4.10 and 4.15
hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest or Liquidated Damages, if any, 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 then outstanding 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 the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of or premium, if any, or interest or Liquidated Damages, if any,
on the Notes;
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(g) waive a redemption payment with respect to any Note (other than
a payment required by one of the covenants described in Sections 3,9, 4.10 and
4.15);
(h) release any Guarantor from any of the obligations under its
Guarantee or their Indentures, except in accordance with the terms of this
Indenture; or
(i) make any change in the foregoing amendment and waiver
provisions.
SECTION 9.3. 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 9.4. 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 of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.5. Notation on or Exchange of Notes
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Issuer in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.6. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Issuer may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental Indenture,
the Trustee shall be entitled to receive and (subject to Section 7.1 hereof)
shall be fully protected in relying upon, in addition to the documents required
by Section 13.4 hereof, an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental Indenture is
authorized or permitted by this Indenture.
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ARTICLE X
SUBORDINATION
SECTION 10.1. Agreement to Subordinate
The Issuer agrees, and each Holder by accepting a Note agrees, that
the Indebtedness evidenced by the Notes is subordinated in right of payment, to
the extent and in the manner provided in this Article X, to the prior payment in
full, in cash or Cash Equivalents, of all Senior Debt (whether outstanding on
the date hereof or hereafter created, incurred, assumed or guaranteed), and that
the subordination is for the benefit of the holders of Senior Debt.
SECTION 10.2. Certain Definitions
"Representative" means the administrative agent, indenture trustee
or other agent, trustee or representative for any Senior Debt.
A "distribution" may consist of cash, securities or other property,
by set off or otherwise.
SECTION 10.3. Liquidation; Dissolution; Bankruptcy
Upon any distribution to creditors of the Issuer in a liquidation or
dissolution of the Issuer or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Issuer or its property, in an
assignment for the benefit of creditors or any marshaling of the Issuer's assets
and liabilities:
(1) holders of Senior Debt shall be entitled to receive payment in
full in cash or Cash Equivalents of all Obligations due in respect of such
Senior Debt (including interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt, whether or not such claim is
allowed under applicable law) before Holders of the Notes shall be entitled to
receive any payment with respect to the Notes (except that Holders may receive
and retain (i) Permitted Junior Securities and (ii) payments made from any
defeasance trust created pursuant to Section 8.1 hereof); and
(2) until all Obligations with respect to Senior Debt (as provided
in subsection (1) above) are paid in full, in cash or Cash Equivalents, any
distribution to which Holders of Notes would be entitled but for this Article X
shall be made to holders of Senior Debt (except that Holders of Notes may
receive and retain (i) Permitted Junior Securities and (ii) payments made from
any defeasance trust created pursuant to Section 8.1 hereof), as their interests
may appear.
SECTION 10.4. Default on Designated Senior Debt
The Issuer may not make any payment or distribution to the Trustee
or any Holder in respect of Obligations with respect to the Notes and may not
acquire from the Trustee or any Holder any Notes for cash or property (other
than (i) Permitted Junior Securities and (ii) payments made from any defeasance
trust created pursuant to Section 8.1 hereof) if:
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(i) a default in the payment of any principal of, premium,
if any, or interest with respect to Designated Senior Debt occurs and is
continuing beyond any applicable grace period in the agreement, indenture
or other document governing such Designated Senior Debt; or
(ii) a default, other than a payment default defined in
Section 10.4(i), on Designated Senior Debt occurs and is continuing that
then permits holders of the Designated Senior Debt as to which such
default relates to accelerate its maturity and the Trustee receives a
notice of the default (a "Payment Blockage Notice") from the Issuer or the
holders of any Designated Senior Debt. If the Trustee receives any such
Payment Blockage Notice, no subsequent Payment Blockage Notice shall be
effective for purposes of this Section unless and until at least 360 days
shall have elapsed since the commencement of the effectiveness of the
immediately prior Payment Blockage Notice and all scheduled payments of
principal, interest and premium and Liquidated Damages, if any, on the
Notes that have come due have been paid in full in cash. No nonpayment
default that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for
a subsequent Payment Blockage Notice unless such default shall have been
cured or waived for a period of at least 90 days.
The Issuer may and shall resume payments on and distributions in
respect of the Notes and may acquire them, if this Article X otherwise permits
the payment, distribution or acquisition at the time of such payment or
acquisition, upon the earlier of:
(1) in the case of a default referred to in Section 10.4(i)
hereof, the date upon which such default is cured or waived or has ceased to
exist or such Designated Senior Debt has been discharged or repaid in full in
cash, or
(2) in the case of a default referred to in Section 10.4(ii)
hereof, the earlier of (i) the date on which such default is cured or waived or
has ceased to exist or such Designated Senior Debt has been discharged or repaid
in full in cash or (ii) 179 days after the date on which the applicable Payment
Blockage Notice is received, unless the maturity of any Designated Senior Debt
has been accelerated.
SECTION 10.5. Acceleration of Securities
If payment of the Securities is accelerated because of an Event of
Default, the Issuer shall promptly notify holders of Senior Debt of the
acceleration.
SECTION 10.6. When Distribution Must Be Paid Over
In the event that the Trustee or any Holder receives any payment of
any Obligations with respect to the Notes at a time when such payment is
prohibited by Section 10.4 hereof, such payment shall be held by the Trustee or
such Holder, in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, to, the holders of Senior Debt as their
interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to
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the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are specifically
set forth in this Article X, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Issuer or
any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article X, except if such payment is made as a result
of the willful misconduct or negligence of the Trustee.
SECTION 10.7. Notice by Issuer
The Issuer shall promptly notify in writing the Trustee and the
Paying Agent of any facts known to the Issuer that would cause a payment of any
Obligations with respect to the Notes to violate this Article X, but failure to
give such notice shall not affect the subordination of the Notes to the Senior
Debt as provided in this Article X.
SECTION 10.8. Subrogation
After all Senior Debt is paid in full and until the Notes are paid
in full, Holders of Notes shall be subrogated (equally and ratably with all
other Indebtedness pari passu with the Notes) to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders of Notes have been applied to the
payment of Senior Debt. A distribution made under this Article X to holders of
Senior Debt that otherwise would have been made to Holders of Notes shall not
be, as between the Issuer and Holders, a payment by the Issuer on the Notes.
SECTION 10.9. Relative Rights
This Article X defines the relative rights of Holders of Notes and
holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Issuer and Holders of Notes, the
obligation of the Issuer, which is absolute and unconditional, to pay principal
of and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders of Notes and creditors
of the Issuer other than their rights in relation to holders of Senior Debt; or
(3) prevent the Trustee or any Holder of Notes from exercising its
available remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Senior Debt to receive distributions and payments
otherwise payable to Holders of Notes.
If the Issuer fails because of this Article X to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event of
Default.
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SECTION 10.10. Subordination May Not Be Impaired by Issuer Or
Guarantors
No right of any holder of Senior Debt to enforce the subordination
of the Indebtedness evidenced by the Notes or the related Guarantees shall be
impaired by any act or failure to act by the Issuer, any Guarantor or any Holder
or by the failure of the Issuer, any Guarantor or any Holder to comply with this
Indenture.
SECTION 10.11. Distribution or Notice to Representative
Whenever a distribution is to be made or a notice given to holders
of Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Issuer referred to
in this Article X, the Trustee and the Holders of Notes shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
of Notes for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Debt and other Indebtedness of the
Issuer, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article X.
SECTION 10.12. Article X Not To Prevent Events of Default or Limit
Right To Accelerate
The failure to make a payment in respect of the Notes, whether
directly or pursuant to any Guarantee, by reason of any provision in this
Article X shall not be construed as preventing the occurrence of a Default or
Event of Default. Nothing in this Article X shall have any effect on the right
of the Holders or the Trustee to accelerate the maturity of the Notes or to make
a claim for payment under any Guarantee.
SECTION 10.13. Rights of Trustee and Paying Agent
Notwithstanding the provisions of this Article X or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article X. Only the Issuer or a
Representative may give the notice. Nothing in this Article X shall impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.7 hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
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SECTION 10.14. Authorization to Effect Subordination
Each Holder of Notes, by the Holder's acceptance thereof, authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article X, and appoints the Trustee to act as such Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.9 hereof at least 30 days before the expiration of the time to file such
claim, the Representatives are hereby authorized to file an appropriate claim
for and on behalf of the Holders of the Notes.
SECTION 10.15. Amendments
The provisions of this Article X shall not be amended or modified
without the written consent of the Holders of at least 75% in aggregate
principal amount of the Notes then outstanding if such amendment would adversely
affect the rights of Holders of Notes.
SECTION 10.16. Trustee's Compensation Not Prejudiced
Nothing in this Article X shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
ARTICLE XI
GUARANTEEs
SECTION 11.1. Unconditional Guarantees
Each Guarantor hereby unconditionally, jointly and severally,
guarantees to each Holder of a Note authenticated by the Trustee and to the
Trustee and its successors and assigns that: the principal of, premium, if any,
interest and Liquidated Damages, if any, on the Notes will be promptly paid in
full when due, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and interest on
any overdue interest on the Notes and all other obligations of the Issuer to the
Holders or the Trustee hereunder or under the Notes will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; subject,
however, to the limitations set forth in Section 11.3. Without limiting any
other obligation of Cott hereunder, Cott also unconditionally guarantees the
Guarantee of each other Guarantor hereunder. Each Guarantor hereby agrees that
its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuer, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Issuer, any right to require a proceeding first against the Issuer,
protest, notice and all demands whatsoever and covenants that the Guarantees
will not be discharged except by complete performance of the obligations
contained in the Notes and this Indenture. If any Holder or the Trustee is
required by any court or otherwise to return to the Issuer or any Guarantor, or
any custodian, trustee, liquidator or other
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similar official acting in relation to the Issuer or any Guarantor, any amount
paid by the Issuer or any Guarantor to the Trustee or such Holder, the
Guarantees, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor further agrees that, as between each Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article VI for the purpose of the Guarantees, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article VI, such obligations (whether or not due and
payable) shall become due and payable by each Guarantor for the purpose of the
Guarantees.
SECTION 11.2. Severability
In case any provision of this Article XI shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 11.3. Limitation of Guarantor's Liability
Each Guarantor, and by its acceptance hereof each Holder and the
Trustee, hereby confirms that it is the intention of all such parties that the
Guarantees not constitute fraudulent transfers or conveyances for purposes of
Title 11 of the United States Code, as amended, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar U.S. Federal
or state or other applicable law. To effectuate the foregoing intention, the
Holders and each Guarantor hereby irrevocably agree that the obligations of each
Guarantor under the Guarantees shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor pursuant to Section 11.4, result in the obligations of such Guarantor
not constituting such a fraudulent transfer or conveyance.
SECTION 11.4. Contribution
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantees such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount, based on the net assets of each Guarantor
(including the Funding Guarantor), determined in accordance with GAAP, subject
to Section 11.3, for all payments, damages and expenses incurred by such Funding
Guarantor in discharging the Issuer's obligations with respect to the Notes or
any other Guarantor's obligations under the Guarantees, as the case may be.
SECTION 11.5. Additional Subsidiary Guarantees
If Cott or any of its Restricted Subsidiaries shall acquire or
create another Domestic Subsidiary after the date of this Indenture, or if any
Restricted Subsidiary becomes a Domestic Subsidiary after the date of this
Indenture, then such newly acquired or created Domestic Subsidiary shall execute
a supplemental indenture providing for its Guarantee, in
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accordance with the terms hereof; provided, that all Restricted Subsidiaries
that have properly been designated as Unrestricted Subsidiaries in accordance
herewith shall not be subject to the requirements of this covenant for so long
as they continue to constitute Unrestricted Subsidiaries.
SECTION 11.6. Subordination of Subrogation and Other Rights
Each Guarantor hereby agrees that any claim against the Issuer that
arises from the payment, performance or enforcement of such Guarantor's
obligations under the Guarantees or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to, and
no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Notes in accordance with
the provisions provided therefor in this Indenture.
SECTION 11.7. Additional Amounts
In connection with Cott's Guarantee of the Notes, any amounts to be
paid by Cott under its Guarantee shall be paid without deduction or withholding
for or on account of any and all present or future tax, duty, assessment or
governmental charge imposed upon or as a result of such payment by the
Government of Canada, or any province or other political subdivision or taxing
authority thereof or therein, or if deduction or withholding of any such tax,
duty, assessment or charge shall at any time be required by or on behalf of the
Government of Canada or any such province, political subdivision or taxing
authority, Cott shall pay such additional amount in respect of principal and
interest as may be necessary in order that the net amounts paid to the Holders
of the Notes or the Trustee, as the case may be, pursuant to the Guarantee after
such deduction or withholding shall not be less than the amount provided for in
the Notes to be then due and payable; except that no such additional amount
shall be payable in respect of any Notes to any holder (1) who is subject to
such tax, duty, assessment or governmental charge in respect of the notes by
reason of his being connected with Canada otherwise than merely by the holding
or ownership of the Notes, or (2) who is not dealing at arm's length with Cott
(within the meaning of the Income Tax Act (Canada) as reenacted or amended from
time to time), or (3) with respect to any estate, inheritance, gift, sales,
transfer, personal property or any other similar tax, duty, assessment or
governmental charge, or (4) with respect to any tax, duty, assessment or
governmental charge payable otherwise than by withholding payments in respect of
the notes, or (5) with respect to any combination of the above.
ARTICLE XII
SUBORDINATION OF GUARANTEEs
SECTION 12.1. Agreement to Subordinate.
Each Guarantor agrees, and each Holder by accepting a Note agrees,
that the Indebtedness evidenced by the Guarantees is subordinated in right of
payment, to the extent and in the manner provided in this Article XII, to the
prior payment in full, in cash or Cash Equivalents, of all Senior Debt (whether
outstanding on the date hereof or hereafter created,
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incurred, assumed or guaranteed), and that the subordination is for the benefit
of the holders of Senior Debt.
SECTION 12.2. Certain Definitions
"Representative" means the administrative agent, indenture trustee
or other agent, trustee or representative for any Senior Debt.
A "distribution" may consist of cash, securities or other property,
by set-off or otherwise.
SECTION 12.3. Liquidation; Dissolution; Bankruptcy
Upon any distribution to creditors of a Guarantor in a liquidation
or dissolution of such Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Guarantor or its property,
in an assignment for the benefit of creditors or any marshaling of such
Guarantor's assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive payment in
full in cash or Cash Equivalents of all Obligations due in respect of such
Senior Debt (including interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt, whether or not such claim is
allowed under applicable law) before Holders of the Notes shall be entitled to
receive any payment with respect to the Guarantees (except that Holders may
receive and retain (i) Permitted Junior Securities and (ii) payments made from
any defeasance trust created pursuant to Section 8.1 hereof); and
(2) until all Obligations with respect to Senior Debt (as provided
in subsection (1) above) are paid in full, in cash or Cash Equivalents, any
distribution to which Holders of Notes would be entitled but for this Article
XII shall be made to holders of Senior Debt (except that Holders of Notes may
receive and retain (i) Permitted Junior Securities and (ii) payments made from
any defeasance trust created pursuant to Section 8.1 hereof), as their interests
may appear.
SECTION 12.4. Default on Designated Senior Debt
The Guarantors may not make any payment or distribution to the
Trustee or any Holder in respect of Obligations with respect to the Guarantees
and may not acquire from the Trustee or any Holder any Notes for cash or
property (other than (i) Permitted Junior Securities and (ii) payments made from
any defeasance trust created pursuant to Section 8.1 hereof) if:
(i) a default in the payment of any principal of, premium,
if any, or interest with respect to Designated Senior Debt occurs and is
continuing beyond any applicable grace period in the agreement, indenture
or other document governing such Designated Senior Debt; or
(ii) a default, other than a payment default defined in
Section 12.4(i), on Designated Senior Debt occurs and is continuing that
then permits holders of the Designated Senior Debt as to which such
default relates to accelerate its maturity and the
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Trustee receives a notice of the default (a "Payment Blockage Notice")
from a Guarantor or the holders of any Designated Senior Debt. If the
Trustee receives any such Payment Blockage Notice, no subsequent Payment
Blockage Notice shall be effective for purposes of this Section unless and
until at least 360 days shall have elapsed since the commencement of the
effectiveness of the immediately prior Payment Blockage Notice and all
scheduled payments of principal, interest and premium and Liquidated
Damages, if any, on the Notes that have come due have been paid in full in
cash. No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice unless such
default shall have been cured or waived for a period of at least 90 days.
The Guarantors may and shall resume payments on and distributions in
respect of the Notes and may acquire them, if this Article XII otherwise permits
the payment, distribution or acquisition at the time of such payment or
acquisition, upon the earlier of:
(1) in the case of a default referred to in Section 12.4(i)
hereof, the date upon which such default is cured or waived or has ceased to
exist or such Designated Senior Debt has been discharged or repaid in full in
cash, or
(2) in the case of a default referred to in Section 12.4(ii)
hereof, the earlier of (i) the date on which such default is cured or waived or
has ceased to exist or such Designated Senior Debt has been discharged or repaid
in full in cash or (ii) 179 days after the date on which the applicable Payment
Blockage Notice is received, unless the maturity of any Designated Senior Debt
has been accelerated.
SECTION 12.5. Acceleration of Securities
If payment on the Guarantees is required because of an Event of
Default, the applicable Guarantor shall promptly notify holders of Senior Debt
of the acceleration.
SECTION 12.6. When Distribution Must Be Paid Over
In the event that the Trustee or any Holder receives any payment of
any Obligations with respect to the Guarantees at a time when such payment is
prohibited by Section 12.4 hereof, such payment shall be held by the Trustee or
such Holder, in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, to, the holders of Senior Debt as their
interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
With respect to the holders of Senior Debt, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are specifically
set forth in this Article XII, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or
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distribute to or on behalf of Holders or the Guarantors or any other Person
money or assets to which any holders of Senior Debt shall be entitled by virtue
of this Article XII, except if such payment is made as a result of the willful
misconduct or negligence of the Trustee.
SECTION 12.7. Notice by the Guarantors
The Guarantors shall promptly notify in writing the Trustee and the
Paying Agent of any facts known to the Guarantors that would cause a payment of
any Obligations with respect to the Guarantees to violate this Article XII, but
failure to give such notice shall not affect the subordination of the Guarantees
to the Senior Debt as provided in this Article XII.
SECTION 12.8. Subrogation
After all Senior Debt is paid in full and until the Notes are paid
in full, Holders of Notes shall be subrogated (equally and ratably with all
other Indebtedness pari passu with the Notes) to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders of Notes have been applied to the
payment of Senior Debt. A distribution made under this Article XII to holders of
Senior Debt that otherwise would have been made to Holders of Notes shall not
be, as between the Guarantors and Holders, a payment by the Guarantors on the
Notes.
SECTION 12.9. Relative Rights
This Article XII defines the relative rights of Holders of Notes and
holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Guarantors and Holders of Notes, the
obligation of the Guarantors to pay on the Guarantees in accordance with their
terms;
(2) affect the relative rights of Holders of Notes and creditors
of the Guarantors other than their rights in relation to holders of Senior Debt;
or
(3) prevent the Trustee or any Holder of Notes from exercising its
available remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Senior Debt to receive distributions and payments
otherwise payable to Holders of Notes.
If a Guarantor fails because of this Article XII to pay principal of
or interest on a Note on the due date, the failure is still a Default or Event
of Default.
SECTION 12.10. Subordination May Not Be Impaired by Guarantors
No right of any holder of Senior Debt to enforce the subordination
of the Indebtedness evidenced by the Guarantees shall be impaired by any act or
failure to act by any Guarantor or any Holder or by the failure of any Guarantor
or any Holder to comply with this Indenture.
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SECTION 12.11. Distribution or Notice to Representative
Whenever a distribution is to be made or a notice given to holders
of Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of a Guarantor referred
to in this Article XII, the Trustee and the Holders of Notes shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
of Notes for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Debt and other Indebtedness of such
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
XII.
SECTION 12.12. Article XII Not To Prevent Events of Default or Limit
Right To Accelerate
The failure to make a payment in respect of any Guarantee, by reason
of any provision in this Article XII shall not be construed as preventing the
occurrence of a Default or Event of Default. Nothing in this Article XII shall
have any effect on the right of the Holders or the Trustee to make a claim for
payment under any Guarantee.
SECTION 12.13. Rights of Trustee and Paying Agent
Notwithstanding the provisions of this Article XII or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article XII. Only the Issuer, a
Guarantor or a Representative may give the notice. Nothing in this Article XII
shall impair the claims of, or payments to, the Trustee under or pursuant to
Section 7.7 hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
SECTION 12.14. Authorization to Effect Subordination
Each Holder of Notes, by the Holder's acceptance thereof, authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article XII, and appoints the Trustee to act as such Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.9 hereof at least 30 days before the expiration of the time to file
such claim, the Representatives are hereby authorized to file an appropriate
claim for and on behalf of the Holders of the Notes.
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SECTION 12.15. Amendments
The provisions of this Article XII shall not be amended or modified
without the written consent of the Holders of at least 75% in aggregate
principal amount of the Notes then outstanding if such amendment would adversely
affect the rights of Holders of Notes.
SECTION 12.16. Trustee's Compensation Not Prejudiced
Nothing in this Article XII shall apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 31 8(c), the imposed duties shall
control.
SECTION 13.2. Notices
Any notice or communication by the Issuer, the 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),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' address
If to the Issuer, Cott and/or any Guarantor:
Cott Corporation
207 Queen's Quay West
Suite 340
Toronto, Ontario X0X 0X0, Xxxxxxx
Xxxxxx
Attention: Xxxx Xxxxxxxx
(Facsimile: 416-203-3898)
With a copy (which shall not constitute notice) to:
Drinker Xxxxxx & Xxxxx LLP
1 Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: H. Xxxx Xxxxxx, Esq.
(Facsimile: 215-988-2757)
If to the Trustee:
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HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Issuer Services
(Facsimile: 212-525-1300)
The Issuer, the Guarantors 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 answered back, if telexed; when receipt
acknowledged, if telecopied; provided that a facsimile received after 5 pm in
the time zone of the recipient or on a non-Business Day shall be deemed to have
been received on the next Business Day; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication 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, except for notices or communications to the Trustee, which shall be
effective only upon actual receipt thereof.
If the Issuer mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 13.3. 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. The
Issuer, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 13.4. Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Issuer to the Trustee to take
any action under this Indenture, the Issuer shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.5 hereof) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
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(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.5 hereof) stating that, in the opinion of such counsel, such action
is authorized or permitted by this Indenture and all such conditions precedent
and covenants have been satisfied.
SECTION 13.5. 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 or her to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 13.6. 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 13.7. No Personal Liability of Directors, Officers,
Employees and Shareholders
No director, officer, employee, incorporator or stockholder of the
Issuer or any Guarantor, as such, shall have any liability for any obligations
of the Issuer or the Guarantors under the Notes, the Guarantees, 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. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that such
a waiver is against public policy.
SECTION 13.8. Governing Law
THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 13.9. Submission to Jurisdiction; Waiver of Immunities. By
the execution and delivery of this Indenture, Cott submits to the non-exclusive
jurisdiction of any federal or appropriate state court in the State of New York
in any suit or proceeding brought by the Trustee (whether in its individual
capacity or in its capacity or capacity as Trustee), consents that any such
action or proceeding may be brought in such courts and waives any objection that
it may now or hereafter have to the venue of any such action or proceeding in
any such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same and agrees that service of
process in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to either Cott or Cott Beverages Inc. at the address set
forth in this Indenture or at such other address of which the Trustee shall have
been notified.
To the extent that Cott has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, Cott hereby
irrevocably waives such immunity in respect of its obligations under this
Indenture and its Guarantee, to the extent permitted by law.
SECTION 13.10. Conversion of Currency. Cott covenants and agrees
that the following provisions shall apply to conversion of currency in the case
of its Guarantee and this Indenture:
(a) (a) If for the purposes of obtaining judgment in, or
enforcing the judgment of, any court in any country, it becomes necessary
to convert into any other currency (the "judgment currency") an amount due
in United States Dollars, then the conversion shall be made at the rate of
exchange prevailing on the Business Day before the day on which the
judgment is given or the order of enforcement is made, as the case may be
(unless a court shall otherwise determine).
(i) If there is a change in the rate of exchange prevailing
between the Business Day before the day on which the judgment is given or
an order of endorsement is made, as the case may be (or such other date as
a court shall determine), and the date of receipt of the amount due, Cott
will pay such additional (or, as the case may be, such lesser) amount, if
any, as may be necessary so that the amount paid in the judgment currency
when converted at the rate of exchange prevailing on the date of receipt
will produce the amount in United States Dollars originally due.
(b) In the event of the winding-up of Cott at any time while any
amount or damages owing under its Guarantee and this Indenture, or any judgment
or order rendered in respect thereof, shall remain outstanding, Cott shall
indemnify and hold the Holders of Notes and the Trustee harmless against any
deficiency arising or resulting from any variation in rates of exchange between
(1) the date as of which the equivalent of the amount in United States Dollars
due or contingently due under the Notes and this Indenture (other than under
this Subsection calculated for the purposes of such winding-up and (2) the final
date for the filing of proofs of claim in such winding-up. For the purpose of
this Subsection (b) the final date for the filing of proofs of claim in the
winding-up of Cott shall be the date fixed by the liquidator or other wise in
accordance with the relevant provisions of applicable law as being the latest
practicable date as
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at which liabilities of Cott may be ascertained for such winding-up prior to
payment by the liquidator or otherwise in respect thereto.
(c) The obligations contained in Subsections (a)(ii) and (b) of this
Section 13.10 shall constitute separate and independent obligations of Cott from
its other obligations under its Guarantee and this Indenture, shall give rise to
separate and independent causes of action against Cott, shall apply irrespective
of any waiver or extension granted by any Holder or the Trustee from time to
time and shall continue in full force and effect notwithstanding any judgment or
order or the filing of any proof of claim in the winding-up of the Company for a
liquidated sum in respect of amounts due hereunder (other than under Subsection
(b) above) or under any such judgment or order. Any such deficiency as aforesaid
shall be deemed to constitute a loss suffered by the Holders or the Trustee, as
the case may be, and no proof or evidence of any actual loss shall be required
by Cott or its liquidator. In the case of Subsection (b) above, the amount of
such deficiency shall not be deemed to be reduced by any variation in rates of
exchange occurring between the said final date and the date of any liquidating
distribution.
(d) The term "rate(s) of exchange" shall mean the rate of exchange
quoted by the Canadian Imperial Bank of Commerce at its central foreign exchange
desk in its main office in Toronto at 12:00 noon (Toronto time) on the relevant
date for purchases of United States dollars with the judgment currency other
than United States Dollars referred to in Subsections (a) and (b) above and
includes any premiums and costs of exchange payable.
SECTION 13.11. Currency Equivalent. Except as otherwise provided in
this Indenture, for purposes of the construction of the terms of this Indenture
or of Cott's Guarantee, in the event that any amount is stated herein in the
currency of one nation (the "First Currency"), as of any date such amount shall
also be deemed to represent the amount in the currency of any other relevant
nation (the "Other Currency") which is required to purchase such amount in the
First Currency at the rate of exchange quoted by the Canadian Imperial Bank of
Commerce at its central foreign exchange desk in its main office in Toronto at
12:00 noon (Toronto time) on the date of determination.
SECTION 13.12. 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 be
affected or impaired thereby.
SECTION 13.13. Counterpart Originals. The parties may sign any
number of copies of this Indenture or the Notes. Each signed copy shall be an
original, but all of them together represent the same agreement.
SECTION 13.14. Table of Contents, Headings, Etc. 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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Dated as of December 21, 2001
COTT BEVERAGES INC.
By:_______________________________
Name:
Title:
COTT CORPORATION
By:_______________________________
Name:
Title:
COTT HOLDINGS INC.
By:_______________________________
Name:
Title:
COTT USA CORP.
By:_______________________________
Name:
Title:
COTT VENDING INC.
By:_______________________________
Name:
Title:
INTERIM BCB, LLC
By:_______________________________
Name:
Title:
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CONCORD HOLDING GP INC.
By:_______________________________
Name:
Title:
CONCORD HOLDING LP INC.
By:_______________________________
Name:
Title:
CONCORD BEVERAGE LP
By:_______________________________
Name:
Title:
HSBC BANK USA, as Trustee
By:_______________________________
Name:
Title:
-3-
EXHIBIT A-1
(Face of Note)
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO
THE PROVISIONS OF THE INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO
THE PROVISIONS OF THE INDENTURE]
CUSIP/CINS
----------
8% SENIOR SUBORDINATED NOTES DUE 2011
No. $
--------- ----------
COTT BEVERAGES INC.
promises to pay to CEDE & Co., as nominee of The Depository Trust Company, or
registered assigns, the principal sum of
---------------------------------------
Dollars on December 15, 2011.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Dated:
COTT BEVERAGES INC.
BY:
---------------------------
Name:
Title:
BY:
---------------------------
Name:
Title:
This is one of the Global Notes referred to in the within-mentioned Indenture:
HSBC BANK USA,
as Trustee
By:
--------------------------
Authorized Officer
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(Back of Note)
8% Senior Subordinated Notes due 2011
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Cott Beverages Inc. (the "Issuer"), a Georgia
corporation, promises to pay interest on the principal amount of this Note at 8%
per annum from December 21, 2001 until maturity and shall pay the Liquidated
Damages, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Issuer shall pay interest and Liquidated
Damages, if any, semi-annually on June 15 and December 15 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be June 15, 2002. The Issuer shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if
any (without regard to any applicable grace periods) from time to time on demand
at the same rate to the extent lawful. Interest will be computed on the basis of
a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Issuer will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the June 1 or
December 1 next preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture (as herein defined) with
respect to defaulted interest. The Notes will be payable as to principal,
premium and Liquidated Damages, if any, and interest at the office or agency of
the Issuer maintained for such purpose within the City and State of New York,
or, at the option of the Issuer, 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 all payments of principal, premium, if
any, interest and Liquidated Damages, if any, with respect to Notes the Holders
of which have given wire transfer instructions to the Issuer at least ten
Business Days prior to the applicable payment date will be required to be made
by wire transfer of immediately available funds to the accounts specified by the
Holders thereof. 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, HSBC BANK USA, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuer
may change any Paying Agent or Registrar without notice to any Holder. The
Issuer, any wholly owned Subsidiary of Cott Corporation, a Canada Corporation
("Cott"), or any Guarantor may act in any such capacity.
4. INDENTURE. The Issuer issued the Notes under an Indenture
dated as of December 21, 2001, as amended or supplemented from time to time
("Indenture"), among the Issuer, the Guarantors and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
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provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Issuer limited to $500.0 million
in aggregate principal amount.
The payment of principal of, and premium, if any, and interest on,
and other Obligations evidenced by, the Notes is subordinated in right of
payment, to the extent and in the manner provided in the Indenture, to the prior
payment in full of all present and future Senior Debt (as defined in the
Indenture) of the Issuer. Each Holder of this Note, by accepting the same, (i)
agrees to such provisions, (ii) authorizes and directs the Trustee on such
Holder's behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (iii) appoints the
Trustee to act as attorney-in-fact for any and all such purposes.
5. OPTIONAL REDEMPTION. (a) Except as set forth in subparagraph
(b) of this Paragraph 5, the Notes will not be redeemable at the Issuer's option
prior to December 15, 2006. Thereafter, the Notes will be subject to redemption
at any time at the option of the Issuer, 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 December 15 of the
years indicated below:
YEAR REDEMPTION PRICE
2006................................. 104.000%
2007................................. 102.667%
2008................................. 101.333%
2009 and thereafter.................. 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to December 15, 2004, the Issuer may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under the Indenture at a redemption price of 108% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages thereon, if
any, to the redemption date, with the net cash proceeds of one or more Equity
Offerings by the Issuer or with the net cash proceeds of one or more Equity
Offerings by Cott that are contributed to the Issuer as common equity capital;
provided that at least 65% of the aggregate principal amount of Notes originally
issued under the Indenture remains outstanding immediately after each occurrence
of such redemption; and provided further that each such redemption shall occur
within 45 days of the date of the closing of such Equity Offering.
6. MANDATORY REDEMPTION. Except as set forth in paragraph 7
below, the Issuer shall not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER. (a) Upon the occurrence of a
Change of Control Triggering Event, the Issuer shall be required to make an
offer (a "Change of Control Offer") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Notes at an offer price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the date of purchase
(the "Change of Control Payment"). Within 10 days following any Change of
Control Triggering Event, the Issuer will mail a notice to each Holder
describing the transaction or transactions that constituted the Change of
Control Triggering Event and offering to repurchase Notes on the date specified
in such notice (the "Change of Control Payment Date"), which date shall be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed, pursuant to the procedures required by the Indenture and described in
such notice.
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(b) If Cott or a Restricted Subsidiary consummates any Asset Sale
for which the aggregate amount of Excess Proceeds exceeds $15.0 million, the
Issuer shall be required to commence an offer (an "Asset Sale Offer") to all
Holders of Notes and to all holders of Pari Passu Notes pursuant to Section 3.9
and Section 4.10 of the Indenture to purchase the maximum principal amount of
Notes and Pari Passu Notes that may be purchased out of the Excess Proceeds at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date of purchase, in accordance with the procedures set forth in the
Indenture and the agreements governing the Pari Passu Notes, as applicable. To
the extent that any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Issuer may use such Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and Pari
Passu Notes tendered in such Asset Sale Offer surrendered by holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
Pari Passu Notes to be purchased pro rata based on the aggregate principal
amount of tendered Notes and Pari Passu Notes. Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the Issuer
prior to any related purchase date and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed by
the Trustee at least 30 days but not more than 60 days before the redemption
date to each Holder whose Notes are to be redeemed at its registered address.
Notes in denominations larger than $1,000 may be redeemed in part but only in
whole multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date, interest ceases to accrue on Notes
or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Issuer may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuer need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Issuer need
not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the next succeeding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Guarantees or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes voting as a single class, and any existing
default or compliance with any provision of the Indenture, the Guarantees or the
Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes voting as a single class. Without the
consent of any Holder of a Note, the Indenture, the Guarantees or the Notes may
be amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the obligations of Cott, the Issuer or
any other Guarantor to Holders of the Notes in case of a merger or consolidation
or sale of all or substantially all of the assets of the Issuer, Cott or any
other Guarantor, to add additional guarantees with respect to the Notes, 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 under the
Indenture of any such Holder, or to comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. An "Event of Default" occurs if: (i)
the Issuer defaults in the payment when due of interest on, or Liquidated
Damages, if any, with respect to, the Notes
A-1-4
and such default continues for a period of 30 days, whether or not such payment
is prohibited by the provisions of Article X of the Indenture; (ii) the Issuer
defaults in the payment when due of principal of or premium, if any, on the
Notes, whether or not such payment is prohibited by the provisions of Article X
of the Indenture; (iii) Cott or any of its Restricted Subsidiaries fail to
comply with any of the provisions of Sections 4.7, 4.15 or 5.1 of the Indenture;
(iv) Cott or any of its Restricted Subsidiaries fail for 30 days after written
notice from the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes to comply with the provisions of Sections 3.9, 4.9 or
4.10 of the Indenture; (v) Cott or any of its Restricted Subsidiaries fail to
observe or perform any other covenant, representation, warranty or other
agreement in the Indenture or the Notes for 60 days after written notice to Cott
by the Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding; (vi) Cott or any of its Restricted Subsidiaries
defaults 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 Cott or any of its Restricted Subsidiaries (or the payment of which
is guaranteed by Cott or any of its Restricted Subsidiaries), whether such
Indebtedness or Guarantee now exists, or is created after the date of the
Indenture, which default (a) is caused by a failure to pay principal of or
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 without duplication $10.0 million or more at any one
time; (vii) Cott or any of its Restricted Subsidiaries fail to pay final
judgments aggregating at any one time in excess of $10.0 million which judgments
are not paid, discharged or stayed for a period of 60 days; (viii) certain
events of bankruptcy or insolvency with respect to Cott, the Issuer or any of
their Restricted Subsidiaries; or (ix) except as permitted by the Indenture, any
Guarantee is held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect or any Guarantor, or any
Person acting on behalf of a Guarantor, denies or disaffirms its obligations
under its Guarantee. 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.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to Cott, the Issuer or
any Restricted Subsidiary, all outstanding Notes shall be due and payable
without further action or notice. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Notes may in
writing direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest or Liquidated Damages) if it determines that withholding
notice is in their interest. 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 the Issuer with the intention of avoiding payment of the premium that the
Issuer would have had to pay if the Issuer then had elected to redeem the Notes
pursuant to the optional redemption provisions of the Indenture, 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 December 15, 2006 by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Issuer with the intention of
avoiding the prohibition on redemption of the Notes prior to December 15, 2006,
then the premium specified in the Indenture shall also become immediately due
and payable to the extent permitted by law upon the acceleration of the Notes.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by written 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 the Indenture except a continuing Default or Event of Default in the
payment of interest on or Liquidated Damages, or the principal of, the Notes.
The Issuer is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Issuer 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.
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13. TRUSTEE DEALINGS WITH ISSUER. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Issuer or its Affiliates, and may otherwise deal with the
Issuer or any Guarantor or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of Cott or the Issuer, as such, shall have any
liability for any obligations of Cott or the Issuer or any Guarantor under the
Notes, the Guarantees or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the Commission that such a waiver is against public policy.
15. AUTHENTICATION. This 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 RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, each Holder of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights of such Holder set forth in the
Registration Rights Agreement, dated as of December 21, 2001, among the Issuer,
the Guarantors, Xxxxxx Brothers Inc. and the other initial purchasers (the
"Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
19. GUARANTEES. This Note will be entitled to the benefits of
certain Guarantees made for the benefit of the Holders. Reference is hereby made
to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and the
Holders. Any payment under the Guarantees is subordinated in right of payment,
to the extent and in the manner provided in the Indenture, to the prior payment
in full of all present and future Senior Debt (as defined in the Indenture) of
the applicable Guarantor.
The Issuer will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Cott Corporation
000 Xxxxx'x Xxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0
Attention: Vice President - Treasurer
20. COUNTERPARTS. This Note may be executed by one or more of the
parties to this Note on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
A-1-6
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint to transfer this Note on the books of the Issuer. The
agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date:
----------
Your signature:
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No.:
SIGNATURE GUARANTEE:
---------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A-1-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Issuer pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased: $________
Date:
--------------
Your signature:
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No.:
SIGNATURE GUARANTEE:
--------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1)
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal
Amount of Amount Signature of
decrease in Amount of of this Global authorized
Principal increase Note officer
Amount in Principal following such of Trustee or
of this Global Amount of this decrease (or Note
Date of Exchange Note Global Note increase) Custodian
---------------- -------------- -------------- -------------- -------------
----------
(1) This should be included only if the Note is issued in global form.
X-0-0
XXXXXXX X-0
(Face of Regulation S Temporary Global Note)
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE
AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("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 INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (2) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.
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CUSIP/CINS
------------
8% SENIOR SUBORDINATED NOTES DUE 2011
No. $
------ ----------
COTT BEVERAGES INC.
promises to pay to CEDE & Co., as nominee of The Depositary Trust Company or
registered assigns, the principal sum of
---------------------------------------
Dollars on December 15, 2011.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Dated:
COTT BEVERAGES INC.
BY:
---------------------------
Name:
Title:
BY:
---------------------------
Name:
Title:
This is one of the Global Notes referred to in the within-mentioned Indenture:
HSBC BANK USA,
as Trustee
By:
-------------------------
Authorized Officer
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(Back of Regulation S Temporary Global Note)
8% Senior Subordinated Notes due 2011
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Cott Beverages Inc. (the "Issuer"), a Georgia
corporation, promises to pay interest on the principal amount of this Note at 8%
per annum from December 21, 2001 until maturity and shall pay the Liquidated
Damages, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Issuer shall pay interest and Liquidated
Damages, if any, semi-annually on June 15 and December 15 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be June 15, 2002. The Issuer shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if
any (without regard to any applicable grace periods) from time to time on demand
at the same rate to the extent lawful. Interest will be computed on the basis of
a 360-day year of twelve 30-day months.
Until this Regulation S Temporary Global Note is exchanged for one
or more Regulation S Permanent Global Notes, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Note shall in all other respects be entitled
to the same benefits as other Notes under the Indenture.
2. METHOD OF PAYMENT. The Issuer will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the June 1 or
December 1 next preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture (as herein defined) with
respect to defaulted interest. The Notes will be payable as to principal,
premium and Liquidated Damages, if any, and interest at the office or agency of
the Issuer maintained for such purpose within the City and State of New York,
or, at the option of the Issuer, 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, and provided that all payments of principal, premium,
if any, interest and Liquidated Damages, if any, with respect to Notes the
Holders of which have given wire transfer instructions to the Issuer at least
ten Business Days prior to the applicable payment date will be required to be
made by wire transfer of immediately available funds to the accounts specified
by the Holders thereof. 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, HSBC BANK USA, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuer
may change any Paying Agent or Registrar without notice to any Holder. The
Issuer, any wholly owned Subsidiary of Cott Corporation, a Canada Corporation
("Cott"), or any Guarantor may act in any such capacity.
4. INDENTURE. The Issuer issued the Notes under an Indenture
dated as of December 21, 2001, as amended or supplemented from time to time
("Indenture"), among the Issuer, the Guarantors and the Trustee. The terms of
the Notes include those stated in the Indenture and those made
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part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with
the express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling. The Notes are obligations of the Issuer limited to
$500.0 million in aggregate principal amount.
The payment of principal of, and premium, if any, and interest on,
and other Obligations evidenced by, the Notes is subordinated in right of
payment, to the extent and in the manner provided in the Indenture, to the prior
payment in full of all present and future Senior Debt (as defined in the
Indenture) of the Issuer. Each Holder of this Note, by accepting the same, (i)
agrees to such provisions, (ii) authorizes and directs the Trustee on such
Holder's behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (iii) appoints the
Trustee to act as attorney-in-fact for any and all such purposes.
5. OPTIONAL REDEMPTION. (a) Except as set forth in subparagraph
(b) of this Paragraph 5, the Notes will not be redeemable at the Issuer's option
prior to December 15, 2006. Thereafter, the Notes will be subject to redemption
at any time at the option of the Issuer, 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 December 15 of the
years indicated below:
YEAR REDEMPTION PRICE
2006................................. 104.000%
2007................................. 102.667%
2008 ................................ 101.333%
2009 and thereafter.................. 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to December 15, 2004, the Issuer may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under the Indenture at a redemption price of 108% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages thereon, if
any, to the redemption date, with the net cash proceeds of one or more Equity
Offerings by the Issuer or with the net cash proceeds of one or more Equity
Offerings by Cott that are contributed to the Issuer as common equity capital;
provided that at least 65% of the aggregate principal amount of Notes originally
issued under the Indenture remains outstanding immediately after each occurrence
of such redemption; and provided further that each such redemption shall occur
within 45 days of the date of the closing of such Equity Offering.
6. MANDATORY REDEMPTION. Except as set forth in paragraph 7
below, the Issuer shall not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER. (a) Upon the occurrence of a
Change of Control Triggering Event, the Issuer shall be required to make an
offer (a "Change of Control Offer") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Notes at an offer price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the date of purchase
(the "Change of Control Payment"). Within 10 days following any Change of
Control Triggering Event, the Issuer will mail a notice to each Holder
describing the transaction or transactions that constituted the Change of
Control Triggering Event and offering to repurchase Notes on the date specified
in such notice (the "Change of Control Payment Date"), which date shall be no
earlier than 30 days and no later than 60 days from the
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date such notice is mailed, pursuant to the procedures required by the Indenture
and described in such notice.
(b) If Cott or a Restricted Subsidiary consummates any Asset Sale
for which the aggregate amount of Excess Proceeds exceeds $15.0 million, the
Issuer shall be required to commence an offer (an "Asset Sale Offer") to all
Holders of Notes and to all holders of Pari Passu Notes pursuant to Section 3.9
and Section 4.10 of the Indenture to purchase the maximum principal amount of
Notes and Pari Passu Notes that may be purchased out of the Excess Proceeds at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date of purchase, in accordance with the procedures set forth in the
Indenture and the agreements governing the Pari Passu Notes, as applicable. To
the extent that any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Issuer may use such Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and Pari
Passu Notes tendered in such Asset Sale Offer surrendered by holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
Pari Passu Notes to be purchased pro rata based on the aggregate principal
amount of tendered Notes and Pari Passu Notes. Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the Issuer
prior to any related purchase date and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed by
the Trustee at least 30 days but not more than 60 days before the redemption
date to each Holder whose Notes are to be redeemed at its registered address.
Notes in denominations larger than $1,000 may be redeemed in part but only in
whole multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date, interest ceases to accrue on Notes
or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Issuer may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuer need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Issuer need
not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the next succeeding Interest Payment Date.
This Regulation S Temporary Global Note is exchangeable in whole or
in part for one or more Global Notes only (i) on or after the termination of the
40-day restricted period (as defined in Regulation S) and (ii) upon presentation
of certificates (accompanied by an Opinion of Counsel, if applicable) required
by Article II of the Indenture. Upon exchange of this Regulation S Temporary
Global Note for one or more Global Notes, the Trustee shall cancel this
Regulation S Temporary Global Note.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Guarantees or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes voting as a single class, and any existing
default or compliance with any provision of the Indenture, the Guarantees or the
Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes voting as a single class. Without the
consent of any Holder of a Note, the Indenture, the Guarantees or the Notes may
be amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the
A-2-3
obligations of Cott, the Issuer or any other Guarantor to Holders of the Notes
in case of a merger or consolidation or sale of all or substantially all of the
assets of the Issuer, Cott or any other Guarantor, to add additional guarantees
with respect to the Notes, 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 under the Indenture of any such Holder, or to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. An "Event of Default" occurs if: (i) the Issuer
defaults in the payment when due of interest on, or Liquidated Damages, if any,
with respect to, the Notes and such default continues for a period of 30 days,
whether or not such payment is prohibited by the provisions of Article X of the
Indenture; (ii) the Issuer defaults in the payment when due of principal of or
premium, if any, on the Notes, whether or not such payment is prohibited by the
provisions of Article X of the Indenture; (iii) Cott or any of its Restricted
Subsidiaries fail to comply with any of the provisions of Sections 4.7, 4.15 or
5.1 of the Indenture; (iv) Cott or any of its Restricted Subsidiaries fail for
30 days after written notice from the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes to comply with the provisions of
Sections 3.9, 4.9 or 4.10 of the Indenture; (v) Cott or any of its Restricted
Subsidiaries fail to observe or perform any other covenant, representation,
warranty or other agreement in the Indenture or the Notes for 60 days after
written notice to Cott by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding; (vi) Cott or any of
its Restricted Subsidiaries defaults 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 Cott or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by Cott or any of its
Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or
is created after the date of the Indenture, which default (a) is caused by a
failure to pay principal of or 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 without duplication $10.0 million
or more at any time; (vii) Cott or any of its Restricted Subsidiaries fail to
pay final judgments aggregating at any time in excess of $10.0 million which
judgments are not paid, discharged or stayed for a period of 60 days; (viii)
certain events of bankruptcy or insolvency with respect to Cott, the Issuer or
any of their Restricted Subsidiaries; or (ix) except as permitted by the
Indenture, any Guarantee is held in any judicial proceeding to be unenforceable
or invalid or ceases for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of a Guarantor, denies or disaffirms
its obligations under its Guarantee. 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.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency with respect to Cott, the Issuer or
any Restricted Subsidiary, all outstanding Notes shall be due and payable
without further action or notice. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Notes may in
writing direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest or Liquidated Damages) if it determines that withholding
notice is in their interest. 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 the Issuer with the intention of avoiding payment of the premium that the
Issuer would have had to pay if the Issuer then had elected to redeem the Notes
pursuant to the optional redemption provisions of the Indenture, 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 December 15, 2006 by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Issuer with the intention of
avoiding the prohibition on redemption of the Notes prior to December 15, 2006,
then the premium specified in the Indenture shall also become immediately due
and payable to the extent
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permitted by law upon the acceleration of the Notes. The Holders of a majority
in aggregate principal amount of the Notes then outstanding by written 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 the Indenture except a
continuing Default or Event of Default in the payment of interest on or
Liquidated Damages, or the principal of, the Notes. The Issuer is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Issuer 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.
13. TRUSTEE DEALINGS WITH ISSUER. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Issuer or its Affiliates, may otherwise deal with the Issuer or
its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder, of Cott or the Issuer, as such, shall have any
liability for any obligations of Cott, the Issuer or any Guarantor under the
Notes, the Guarantees or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the Commission that such a waiver is against public policy.
15. AUTHENTICATION. This 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 RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, each Holder of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights of such Holder set forth in the
Registration Rights Agreement, dated as of December 21, 2001, among the Issuer,
the Guarantors, Xxxxxx Brothers Inc. and the other initial purchasers ( the
"Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
19. GUARANTEES. This Note will be entitled to the benefits of
certain Guarantees made for the benefit of the Holders. Reference is hereby made
to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and the
Holders. Any payment under the Guarantees is subordinated in right of payment,
to the extent and in the manner provided in the Indenture, to the prior payment
in full of all present and future Senior Debt (as defined in the Indenture) of
the applicable Guarantor.
The Issuer will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
X-0-0
Xxxx Xxxxxxxxxxx
000 Xxxxx'x Xxxx West
Suite 340
Toronto, Ontario Canada M5J 1A7
Attention: Vice President-Treasurer
20. COUNTERPARTS. This Note may be executed by one or more of the
parties to this Note on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint to transfer this Note on the books of the Issuer. The
agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date:
------------
Your signature:
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No.:
SIGNATURE GUARANTEE:
-------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Issuer pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased: $_________
Date:
-----------------
Your signature:
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No.:
SIGNATURE GUARANTEE:
-------------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
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SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary
Global Note for an interest in another Global Note, or of other Restricted
Global Notes for an interest in this Regulation S Temporary Global Note, have
been made:
Principal Amount
Amount of Amount of of this Global
decrease in increase Note Signature of
Principal Amount in Principal following such authorized officer
of this Global Amount of this decrease (or of Trustee or Note
Date of Exchange Note Global Note increase) Custodian
---------------- ---------------- -------------- ---------------- ------------------
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Cott Beverages Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Issuer Services
Re: 8% Senior Subordinated Notes due 2011
Reference is hereby made to the Indenture, dated as of December 21,
2001 (the "Indenture"), among Cott Beverages Inc. (the "Issuer"), the
Guarantors, and HSBC Bank USA, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
__________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $____ in such Note[s] or interests (the "Transfer"), to
______ (the "Transferee"), as further specified in Annex A hereto. In connection
with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
TEMPORARY REGULATION S GLOBAL NOTE, THE REGULATION S GLOBAL NOTE OR A DEFINITIVE
NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made
to a person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
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selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Note, the
Temporary Regulation S Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY PROVISION
OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Issuer or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by ( 1) a certificate executed by the Transferee and (2) if such Transfer is in
respect of a principal amount of Notes at the time of transfer of less than
$250,000, an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the IAI Global Note and/or the Definitive Notes and in the Indenture and the
Securities Act.
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4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer.
---------------------------
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated: ,
------ ---
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _____), or
(ii) [ ] Regulation S Global Note (CUSIP _____), or
(iii) [ ] IAI Global Note (CUSIP _____); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _____), or
(ii) [ ] Regulation S Global Note (CUSIP _____), or
(iii) [ ] a IAI Global Note (CUSIP _____), or
(iv) [ ] Unrestricted Global Note (CUSIP _____); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Cott Beverages Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
HSBC BANK USA
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Issuer Services
Re: 8% Senior Subordinated Notes due 2011
(CUSIP ____________________)
Reference is hereby made to the Indenture, dated as of December 21,
2001 (the "Indenture"), among Cott Beverages Inc. (the "Issuer"), the
Guarantors, and HSBC BANK USA, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
________________ (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$______ in such Note[s] or interests (the "Exchange"). In connection with the
Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
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(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] [ ] 144A Global Note, [ ] Regulation S Global Note, [ ] IAI Global
Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer.
---------------------
[Insert Name of Owner]
By:
-------------------
Name:
Title:
Dated: ,
------- ---
C-3
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
_______________, among _______________ (the "Guaranteeing Subsidiary"), a
subsidiary of Cott Corporation (or its permitted successor), a Canadian
corporation ("Cott"), Cot Beverages Inc., as Issuer, the other Guarantors (as
defined in the indenture referred to herein) and HSBC BANK USA, as trustee under
the indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Issuer has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of December 21, 2001 providing
for the issuance of an aggregate principal amount of up to $500.0 million of 8%
Senior Subordinated Notes due 2011 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary of Cott shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiary shall
unconditionally guarantee all of the Issuer's Obligations under the Notes and
the Indenture on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. INDENTURE PROVISION PURSUANT TO WHICH GUARANTEE IS GIVEN. This
Supplemental Indenture is being executed and delivered pursuant to Section 4.17
or 11.5 of the Indenture.
3. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Guarantors named in the Indenture, to jointly
and severally Guarantee to each Holder of a Note authenticated
by the Trustee and to the Trustee and its successors and
assigns that the principal of, premium, if any, and interest
and Liquidated Damages, if any, on the Notes will be promptly
paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration or otherwise, and
interest on the overdue principal and interest on any overdue
interest on the Notes, if any, and all other obligations of
the Issuer to the Holders or the Trustee under the Indenture
or under the Notes will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof, subject,
however, to the limitations set forth in Section 11.3 of the
Indenture.
(b) The obligations hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability of the Notes or
the Indenture, the absence of any
D-1
action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Issuer, any
action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or
defense of a Guarantor.
(c) The Guaranteeing Subsidiary hereby waives: diligence,
presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer,
protest, notice and all demands whatsoever.
(d) This Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the
Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Issuer or any Guarantor, or any
custodian, trustee, liquidator or other similar official
acting in relation to the Issuer or any Guarantor, any amount
paid by the Issuer or any Guarantor to the Trustee or such
Holder, this Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary agrees that any claim against the
Issuer that arises from the payment, performance or
enforcement of the Guaranteeing Subsidiary's obligations under
this Guarantee or the Indenture, including, without
limitation, any right of subrogation, shall be subject and
subordinate to, and no payment with respect to any such claim
of the Guaranteeing Subsidiary shall be made before, the
payment in full in cash of all outstanding Notes in accordance
with the provisions provided therefor in the Indenture.
(g) As between the Guarantors, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided
in Article VI of the Indenture for the purposes of this
Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any
acceleration of such obligations as provided in Article VI of
the Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by each
Guarantor for the purpose of this Guarantee.
(h) The Guarantors agree, inter se, that in the event any payment
or distribution is made by any Guarantor (a "Funding
Guarantor") under the Guarantees, such Funding Guarantor shall
be entitled to a contribution from all other Guarantors in a
pro rata amount, based on the net assets of each Guarantor
(including the Funding Guarantor), determined in accordance
with GAAP, subject to Section 11.3 of the Indenture, for all
payments, damages and expenses incurred by such Funding
Guarantor in discharging the Issuer's obligations with respect
to the Notes or any other Guarantor's obligations under the
Guarantees, as the case may be.
(i) The obligations of the Guaranteeing Subsidiary under this
Guarantee shall be limited to the extent set forth in Section
11.3 of the Indenture.
D-2
(j) This Guarantee inures to the benefit of and is enforceable by
the Trustee, the Holders and their successors, transferees and
assigns.
4. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees
that the Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of any such Guarantees.
5. MERGER, CONSOLIDATION, OR SALE OR LEASE OF ASSETS. The
Guaranteeing Subsidiary shall not sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with or into
another Person (other than the Issuer or another Guarantor) except in accordance
with Section 5.1(b) of the Indenture. This Guarantee will be released in
accordance with Section 5.1(b) of the Indenture.
6. SUBORDINATION OF GUARANTEE. The Guaranteeing Subsidiary agrees
that the Indebtedness evidenced by this Guarantee is subordinated in right of
payment, to the extent and in the manner provided in Article XII of the
Indenture, to the prior payment in full, in cash or Cash Equivalents, of all
Senior Debt (whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt.
7. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Guaranteeing Subsidiary, as such, shall have
any liability for any obligations of the Issuer, Cott or any Guaranteeing
Subsidiary under the Notes, any Guarantees, the Indenture or this Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of the Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
8. FEES AND EXPENSES. The Guaranteeing Subsidiary hereby agrees
to pay any and all expenses (including reasonable counsel fees and expenses)
incurred by the Trustee or the Holders in enforcing any rights under the
Guarantees.
9. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
11. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
12. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Issuer.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ,
---------- -----
[Guaranteeing Subsidiary]
By:
--------------------------------
Name:
Title:
HSBC BANK USA, as Trustee
By:
--------------------------------
Name:
Title:
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