<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 5, 2000
-----------------
COMMISSION FILE NUMBER 0-7570
-----------------------------
<TABLE>
<S> <C> <C>
Delaware Canandaigua Brands, Inc. 16-0716709
and its subsidiary guarantors:
New York Batavia Wine Cellars, Inc. 16-1222994
New York Canandaigua Wine Company, Inc. 16-1462887
New York Canandaigua Europe Limited 16-1195581
England and Wales Canandaigua Limited 98-0198402
New York Polyphenolics, Inc. 16-1546354
New York Roberts Trading Corp. 16-0865491
Netherlands Canandaigua B.V. 98-0205132
Delaware Franciscan Vineyards, Inc. 94-2602962
California Allberry, Inc. 68-0324763
California Cloud Peak Corporation 68-0324762
California M.J. Lewis Corp. 94-3065450
California Mt. Veeder Corporation 94-2862667
Delaware Barton Incorporated 36-3500366
Delaware Barton Brands, Ltd. 36-3185921
Maryland Barton Beers, Ltd. 36-2855879
Connecticut Barton Brands of California, Inc. 06-1048198
Georgia Barton Brands of Georgia, Inc. 58-1215938
Illinois Barton Canada, Ltd. 36-4283446
New York Barton Distillers Import Corp. 13-1794441
Delaware Barton Financial Corporation 51-0311795
Wisconsin Stevens Point Beverage Co. 39-0638900
Illinois Monarch Import Company 36-3539106
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(State or other jurisdiction (Exact name of registrant as specified in its charter) (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
300 WillowBrook Office Park, Fairport, New York 14450
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (716) 218-2169
--------------
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(Former name or former address, if changed since last report)
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The following exhibits are filed to be incorporated into registration
statement No. 333-91587:
1.1. Underwriting Agreement dated May 5, 2000 by and among Canandaigua Brands,
Inc., Allberry, Inc., Barton Beers, Ltd., Barton Brands of California, Inc.,
Barton Brands of Georgia, Inc., Barton Brands, Ltd., Barton Canada, Ltd., Barton
Distillers Import Corp., Barton Financial Corporation, Barton Incorporated,
Batavia Wine Cellars, Inc., Canandaigua B.V., Canandaigua Europe Limited,
Canandaigua Limited, Canandaigua Wine Company, Inc., Cloud Peak Corporation,
Franciscan Vineyards, Inc., M.J. Lewis Corp., Monarch Import Company, Mt. Veeder
Corporation, Polyphenolics, Inc., Roberts Trading Corp., and Stevens Point
Beverage Co., as Issuers, and Barclays Bank PLC, as Underwriter.
4.1 Form of Supplemental Indenture No. 4 to be dated as of May 15, 2000 by and
among Canandaigua Brands, Inc., as Issuer, and Allberry, Inc., Barton Beers,
Ltd., Barton Brands of California, Inc., Barton Brands of Georgia, Inc., Barton
Brands, Ltd., Barton Canada, Ltd., Barton Distillers Import Corp., Barton
Financial Corporation, Barton Incorporated, Batavia Wine Cellars, Inc.,
Canandaigua B.V., Canandaigua Europe Limited, Canandaigua Limited, Canandaigua
Wine Company, Inc., Cloud Peak Corporation, Franciscan Vineyards, Inc., M.J.
Lewis Corp., Monarch Import Company, Mt. Veeder Corporation, Polyphenolics,
Inc., Roberts Trading Corp., and Stevens Point Beverage Co., as Guarantors, and
Harris Trust and Savings Bank, as Trustee.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, each
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
CANANDAIGUA BRANDS, INC.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Executive Vice
President and Chief Financial Officer
SUBSIDIARIES
BATAVIA WINE CELLARS, INC.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Treasurer
CANANDAIGUA WINE COMPANY, INC.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Treasurer
CANANDAIGUA EUROPE LIMITED
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Treasurer
CANANDAIGUA LIMITED
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Finance Director
POLYPHENOLICS, INC.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President and Treasurer
<PAGE>
ROBERTS TRADING CORP.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, President and Treasurer
CANANDAIGUA B.V.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Authorized Representative
FRANCISCAN VINEYARDS, INC.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President and Treasurer
ALLBERRY, INC.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
-------------------------------------
Thomas S. Summer, Vice President and Treasurer
CLOUD PEAK CORPORATION
Dated: May 12, 2000 By: /s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President and Treasurer
M.J. LEWIS CORP.
Dated: May 12, 2000 By: /s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President and Treasurer
MT. VEEDER CORPORATION
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President and Treasurer
<PAGE>
BARTON INCORPORATED
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President
BARTON BRANDS, LTD.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President
BARTON BEERS, LTD.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President
BARTON BRANDS OF CALIFORNIA, INC.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President
BARTON BRANDS OF GEORGIA, INC.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President
BARTON CANADA, LTD.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President
BARTON DISTILLERS IMPORT CORP.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President
<PAGE>
BARTON FINANCIAL CORPORATION
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President
STEVENS POINT BEVERAGE CO.
Dated: May 12, 2000 By:
/s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President
MONARCH IMPORT COMPANY
Dated: May 12, 2000 By: /s/ Thomas S. Summer
--------------------------------------
Thomas S. Summer, Vice President
<PAGE>
Exhibit 1.1
-----------
UNDERWRITING AGREEMENT
CANANDAIGUA BRANDS, INC.
(Pounds)80,000,000 of 8 1/2% Series C Senior Notes due 2009
May 5, 2000
BARCLAYS BANK PLC
5 The North Colonnade
Canary Wharf
London E14 4BB
Ladies and Gentlemen:
Canandaigua Brands, Inc., a Delaware corporation (the "Company"), by
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this agreement (the "Agreement") proposes to issue and sell to Barclays Bank PLC
---------
(the "Underwriter") (Pounds)80,000,000 aggregate principal amount of its 8 1/2%
-----------
Series C Senior Notes due 2009 (the "Notes"). The Notes will initially be
-----
unconditionally guaranteed (the "Guarantees" and, together with the Notes, the
----------
"Securities") by each of: Batavia Wine Cellars, Inc., Canandaigua Wine Company,
- -----------
Inc., Canandaigua Europe Limited, Roberts Trading Corp., Polyphenolics, Inc.,
and Barton Distillers Import Corp., each a New York corporation, Barton
Incorporated, Barton Brands, Ltd., Barton Financial Corporation and Franciscan
Vineyards, Inc., each a Delaware corporation, Barton Beers, Ltd., a Maryland
corporation, Barton Brands of California, Inc., a Connecticut corporation,
Barton Brands of Georgia, Inc., a Georgia corporation, Stevens Point Beverage
Co., a Wisconsin corporation, Monarch Import Company and Barton Canada, Ltd.,
each an Illinois corporation, Allberry, Inc., Cloud Peak Corporation, M.J. Lewis
Corp. and Mt. Veeder Corporation, each a California Corporation, Canandaigua
Limited, a company organized under the laws of England and Wales, and
Canandaigua B.V., a company organized under the laws of the Kingdom of the
Netherlands (collectively, the "Guarantors" and, together with the Company, the
----------
"Issuers"). The Securities are to be issued under an indenture dated February
-------
25, 1999 (the "Initial Indenture") as supplemented by Supplemental Indenture No.
-----------------
3 dated August 6, 1999 (the "Third Supplemental Indenture" and together with the
----------------------------
Initial Indenture, the "Base Indenture"), as further supplemented by Amend-
--------------
<PAGE>
-2-
ment No. 4 to be dated May 15, 2000 (the "Fourth Supplemental Indenture" and
-----------------------------
together with the Base Indenture, the "Indenture").
---------
The Issuers have prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
----------
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
--------------
statement (file number 333-91587) on Form S-3, relating to certain securities
(the "Shelf Securities") to be issued from time to time by the Issuers, as the
----------------
case may be. The Issuers have also filed with, or propose to file with, the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424") a
--------
prospectus supplement specifically relating to the Securities (a "Prospectus
----------
Supplement"). The registration statement as amended to the date of this
- ----------
Agreement and including any registration statement filed pursuant to Rule 462(B)
under the Securities Act (a "Rule 462(B) Registration Statement") is hereinafter
----------------------------------
referred to as the "Registration Statement" and the related prospectus covering
----------------------
the Shelf Securities in the form first used to confirm sales of the Securities
is hereinafter referred to as the "Basic Prospectus." The Basic Prospectus as
----------------
supplemented by any applicable Prospectus Supplement specifically relating to
the Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus." Any reference in this Agreement to
----------
the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "Preliminary Prospectus") previously filed with the Commission
----------------------
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act that were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
------------
the date of the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Prospectus, as the case may be; and any reference to "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed under the Exchange Act after the
date of this Agreement, or the date of the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Issuers hereby agree with the Underwriter as follows:
1. The Issuers hereby agree to issue and sell the Securities to the
Underwriter as hereinafter provided, and the Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase from the Issuers (Pounds)80,000,000
aggregate principal amount of Securities at the applicable purchase price set
forth in Schedule I hereto.
<PAGE>
-3-
2. The Issuers understand that the Underwriter intends (i) to make an
offering in the United States and Europe of the Securities and (ii) initially to
offer the Securities upon the terms set forth in the Prospectus.
The Underwriter represents and agrees with the Issuers that (i) it has
not offered or sold, and, before the expiry of six months from the Closing Date,
will not offer or sell, any Securities to persons in the United Kingdom, except
to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for purposes of
their business, or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995; (ii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom; and (iii) it is a person of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom the
document may otherwise lawfully be issued or passed on.
The Underwriter further represents and agrees with the Issuers that,
with respect to offers or sales made in jurisdictions outside of the United
States or the United Kingdom, it has made or will make such offers or sales in
compliance with applicable law.
3. Payment for the Securities shall be made to the Company or to its
order in immediately available funds on the date and at the time and place set
forth in Schedule I hereto (or at such other time and place on the same or such
other date, not later than the fifth Business Day thereafter, as the Underwriter
and the Company may agree in writing). The time and date of such payment for the
Securities are referred to herein as the "Closing Date." Such payment will be
------------
made upon delivery to the Underwriter of the Securities registered in such names
and in such denominations as the Underwriter shall request not less than two
full Business Days prior to the date of delivery, with any transfer taxes
payable in connection with transfer to the Underwriter duly paid by the Company.
As used herein, the term "Business Day" means any day other than a day on which
------------
banks are permitted or required to be closed in New York, New York or London,
England. The Securities will be delivered through the book-entry facilities of
either the Euroclear System ("Euroclear") or Clearstream Banking Luxembourg
---------
("Clearstream") or such other facility as the Underwriter shall reasonably
-----------
request. The Securities will be made available for inspection by the Underwriter
at the office of Cahill Gordon & Reindel at 80 Pine Street, New York, New York
10005 not later than 1:00 P.M., New York City time, on the Business Day prior to
the Closing Date.
4. Each of the Issuers, jointly and severally, represents and
warrants to the Underwriter that:
<PAGE>
-4-
(a) The Registration Statement has (i) been prepared by the Company
in conformity with the requirements of the Securities Act, (ii) been filed
with the Commission under the Securities Act and (iii) become effective
under the Securities Act. Copies of such registration statement and any
amendments thereto, as well as copies of the Preliminary Prospectus, have
been delivered by the Company to you. "Effective Time" means the date and
--------------
the time as of which the Registration Statement, or the most recent post-
effective amendment thereof, if any, was declared effective by the
Commission; and "Effective Date" means the date of the Effective Time. The
--------------
Commission has not issued any order preventing or suspending the use of the
Prospectus or the effectiveness of the Registration Statement.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform, in all material respects to the
requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and do not and will not, as of the
-------------------
applicable Effective Date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto), contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances in which they were made)
not misleading; on the Closing Date, the Indenture will conform in all
material respects to the applicable requirements of the Trust Indenture Act
and the rules and regulations of the Commission thereunder; and, at the
Effective Time, the Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to Rule 424(b) and
on the Closing Date, the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualifications (Form T-1) of the Trustee under the Trust Indenture Act or
(ii) information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriter expressly for
use therein (the "Underwriter's Information"). It is hereby understood and
-------------------------
agreed that the only such information furnished by the Underwriter consists
of its name contained in the Registration Statement and the Prospectus and
the information in the third, and the last three paragraphs (including the
information set forth in the
<PAGE>
-5-
bullet points in the penultimate paragraph) under the heading "Plan of
Distribution" in the Prospectus Supplement.
(c) The Luxembourg Stock Exchange memorandum of listing particulars
(the "Listing Particulars"), in the form approved by the Luxembourg Stock
-------------------
Exchange, will not, as of its date, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(d) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(e) Each Preliminary Prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 complied when so filed in all material respects with
the Securities Act and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations
and warranties set forth in this paragraph do not apply to the
Underwriter's Information.
(f) The Company and each of its consolidated subsidiaries (the
"Subsidiaries") have been duly incorporated and are validly existing as
------------
corporations in good standing under the laws of their respective
jurisdictions of incorporation, with full power and authority (corporate
and other) to own their properties and conduct their respective businesses
as described in the Prospectus, and are duly qualified to transact business
as foreign corporations in good standing under the laws of each
jurisdiction where the ownership or leasing of their respective properties
or the conduct of their respective businesses require such qualification,
except where the failure to so qualify would not have a material adverse
effect on the business, management, condition (fi-
<PAGE>
-6-
nancial or otherwise), results of operations or business prospects of the
Company and its Subsidiaries considered as a whole (a "Material Adverse
----------------
Effect"); the Company had at the dates indicated an authorized
------
capitalization as set forth in the Prospectus, and the issued shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable, and the outstanding shares of
capital stock of each of the Company's Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable and
(except for directors' qualifying shares) are owned beneficially by the
Company free and clear of all liens, encumbrances, equities and claims
(collectively, "Liens") except for the Liens under the Credit Agreement,
dated as of October 6, 1999, between the Company, the guarantors named
therein, the lenders signatory thereto, The Chase Manhattan Bank, as
Administrative Agent, the Bank of Nova Scotia, as Syndication Agent and
Credit Suisse First Boston and Citicorp USA, Inc. as Co-Documentation
Agents (the "Credit Agreement"). Neither the Company nor any of the
----------------
Guarantors is in violation of its respective charter or bylaws and neither
the Company nor any of the Guarantors is in default (nor has an event
occurred with notice, lapse of time or both that would constitute a
default) in the performance of any obligation, agreement or condition
contained in any agreement, lease, indenture or instrument of the Company
or any Guarantor where such violation or default would have a Material
Adverse Effect.
(g) The Issuers have full corporate power and authority to enter into
this Agreement and the Indenture and to issue, sell and deliver the Notes,
in the case of the Company, and the Guarantees, in the case of the
Guarantors, to be sold by them to the Underwriter as provided herein and
therein. The execution, delivery and performance of this Agreement, the
Indenture and the Securities by the Company or any Guarantor, as the case
may be, and the consummation by the Company or any Guarantor, as the case
may be, of the transactions contemplated hereby and thereby does not and
will not conflict with or result in a breach or violation by the Company or
any Subsidiary, as the case may be, of any of the terms or provisions of,
constitute a default by the Company or any Subsidiary, as the case may be,
under, or result in the creation or imposition of any lien, charge,
security interest or encumbrance upon any of the assets of the Company or
any Subsidiary, as the case may be, pursuant to the terms of, (A) the
Credit Agreement and any other indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Company or
any Subsidiary, as the case may be, is a party or to which any of them or
any of their respective properties is subject, (B) the charter or bylaws of
the Company or any Subsidiary, as the case may be, or (C) any statute,
judgment, decree, order, rule or regulation of any foreign or domestic
court, governmental agency or regulatory agency or body having jurisdiction
over the Company or any of the Subsidiaries or any of their respective
properties or
<PAGE>
-7-
assets except for any conflict, breach, default, lien, charge, security
interest or encumbrance that would not have a Material Adverse Effect.
(h) The execution and delivery of the Indenture has been duly
authorized by all necessary corporate action of the Issuers and, when the
Fourth Supplemental Indenture has been duly executed and delivered in
accordance with its terms by each party thereto, will be a legal, valid and
binding agreement of the Issuers, enforceable against the Issuers in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws relating to creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether such
enforcement may be sought in a proceeding in equity or at law). The
issuance, execution and delivery of the Notes have been duly authorized by
all necessary corporate action of the Company and, when executed, issued
and delivered by the Company and authenticated by the Trustee and paid for
in accordance with this Agreement, will be the legal, valid, binding and
enforceable obligations of the Company, entitled to the benefits of the
Indenture subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally, and subject, as to enforceability,
to general principles of equity (regardless of whether such enforcement may
be sought in a proceeding in equity or at law). The issuance, execution and
delivery of the Guarantees have been duly authorized by all necessary
corporate action of each Guarantor and, when executed, issued and delivered
by each Guarantor and authenticated by the Trustee and paid for in
accordance with this Agreement, will be the legal, valid, binding and
enforceable obligations of each Guarantor, entitled to the benefits of the
Indenture subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally, and subject, as to enforceability,
to general principles of equity (regardless of whether such enforcement may
be sought in a proceeding in equity or at law). The execution and delivery
of this Agreement by the Issuers has been duly authorized by all necessary
corporate action, and this Agreement has been duly executed and delivered
by the Issuers and is the valid and legally binding agreement of each of
the Issuers.
(i) Except as described or referred to in the Prospectus, there is
not pending, or to the knowledge of the Issuers threatened, any action,
suit, proceeding, inquiry or investigation to which the Company or any of
the Subsidiaries is a party, or to which the property of the Company or any
of the Subsidiaries is subject, before or brought by any court or
governmental agency or body, which, if determined adversely to the Company
or any of the Subsidiaries, would individually or in the aggregate have a
Material Adverse Effect or might materially adversely affect the
consummation of the offering of the Securities pursuant to this Agreement;
and all pending legal or governmental proceedings to which the Company or
any of the Subsidiaries is a party or that affect any of their respective
properties that are not described in the Prospectus,
<PAGE>
-8-
including ordinary routine litigation incidental to the business, would
not, in the aggregate, result in a Material Adverse Effect.
(j) Arthur Andersen LLP are independent certified public accountants
with respect to the Company and its consolidated Subsidiaries and KPMG LLP
are independent certified public accountants with respect to certain
product lines sold to the Company by Diageo Inc. (the "Diageo Assets"), in
-------------
each case, within the meaning of Rule 101 of the Code of Professional
Conduct of the American Institute of Certified Public Accountants ("AICPA")
-----
and its interpretations and rulings thereunder. The historical financial
statements of the Company and the Diageo Assets (including the related
notes) incorporated by reference in the Prospectus comply as to form in all
material respects with the requirements applicable to a registration
statement on Form S-3 under the Securities Act; such historical financial
statements have been prepared in accordance with United States generally
accepted accounting principles ("GAAP") consistently applied throughout the
----
periods covered thereby and fairly present the financial position of the
Company or the Diageo Assets at the respective dates indicated and the
results of their operations and in the case of the Company, its cash flows
for the respective periods indicated. The financial information contained
in or incorporated by reference in the Prospectus and relating to the
Company is derived from the accounting records of the Company and its
Subsidiaries and fairly presents the information purported to be shown
thereby. The pro forma financial statements incorporated by reference in
the Prospectus have been prepared on a basis consistent with the historical
financial statements incorporated by reference in the Prospectus (except
for the pro forma adjustments specified therein), include all material
adjustments to the historical financial statements required by Rule 11-02
of Regulation S-X under the Securities Act and the Exchange Act to reflect
the transactions described in the Registration Statement, the Prospectus or
in the documents incorporated therein by reference, are based on
assumptions made on a reasonable basis and fairly present such transactions
described in the Registration Statement, the Prospectus or in the documents
incorporated therein by reference. The other historical financial and
statistical information and data included in the Registration Statement,
the Prospectus or in the documents incorporated therein by reference fairly
presents, in all material respects, the information purported to be shown
thereby. The financial information included in the Prospectus under the
caption "Unaudited Summary Pro Forma Combined Financial Data" is based on
---------------------------------------------------
assumptions made on a reasonable basis and such pro forma financial data is
fairly presented in all material respects.
(k) Except as described in or contemplated by the Registration
Statement or the Prospectus, subsequent to February 29, 2000, (i) neither
the Company nor any of the Subsidiaries has sustained any loss or
interference with its business or properties
<PAGE>
-9-
from fire, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree which would have a Material Adverse Effect; and
(ii) there has not been any change in the capital stock (other than as a
result of exercises of options under the Company's stock option plans in
==
existence on the date hereof, including issuances under the Company's 1989
Employee Stock Purchase Plan, as amended or issuances under the Company's
=========
U.K. Share Save Scheme, as amended, any repurchases by the Company under
its Stock Repurchase Program or as a result of the conversion of the
Company's Class B Common Stock (par value $.01 per share) into Class A
Common Stock (par value $.01 per share)) or long-term debt of the Company
or any of the Guarantors, or any other material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business, condition (financial or otherwise), prospects or
operations of the Company and the Subsidiaries taken as a whole.
(l) The Company and each of the Subsidiaries have good and marketable
title to all properties and assets, as described in the Prospectus as owned
by them free and clear of all liens, encumbrances, claims, security
interests or restrictions, except as provided under the Credit Agreement as
such as are described in the Prospectus or do not interfere with the use
made and proposed to be made of such properties by the Company and the
Subsidiaries and would not individually or in the aggregate result in a
Material Adverse Effect; and all of the leases and subleases material to
the business of the Company and the Subsidiaries taken as a whole, and
under which the Company or any of the Subsidiaries holds properties
described in the Prospectus, are in full force and effect and neither the
Company nor any of the Subsidiaries has any notice of any claims of any
sort that have been asserted by anyone adverse to the rights of the Company
or any of the Subsidiaries under such leases or subleases, or affecting or
questioning the rights of the Company or any of the Subsidiaries to the
continued possession of the leased or subleased premises under any such
lease or sublease, which claims would have a Material Adverse Effect.
(m) Each of the Company and the Subsidiaries owns or possesses all
governmental and other licenses, permits, certificates, consents, orders,
approvals and other authorizations necessary to own, lease and operate its
properties and to conduct its business as presently conducted by it and
described in the Prospectus, except where the failure to own or possess
such licenses, permits, certificates, consents, orders, approvals and other
authorizations would not, individually or in the aggregate, have a Material
Adverse Effect (collectively, the "Material Licenses"); all of the Material
-----------------
Licenses are valid and in full force and effect, except where the
invalidity of such Material License or the failure of such Material License
to be in full force and effect would not, individually or in the aggregate,
have a Material Adverse Effect; and none of the
<PAGE>
-10-
Company or any of its Subsidiaries has received any notice of proceedings
relating to revocation or modification of any such Material Licenses which
would, individually or in the aggregate, have a Material Adverse Effect.
(n) Each of the Company and its Subsidiaries owns or possesses, or
can acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, trademarks, service marks, trade names and know-how
(including trade secrets and other patentable and/or unpatentable
proprietary or confidential information or procedures) (collectively,
"intellectual property") necessary to carry on its business as presently
---------------------
operated by it, except where the failure to own or possess or have the
ability to acquire any such intellectual property would not, individually
or in the aggregate, have a Material Adverse Effect; and none of the
Company or any of its Subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any intellectual property or of any facts which would
render any intellectual property invalid or inadequate to protect the
interest of the Company or any of its Subsidiaries therein and which
infringement or conflict would have a Material Adverse Effect.
(o) None of the Company or any of its Subsidiaries has taken, or will
take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of
the price of the Securities.
(p) None of the Company or any of its Subsidiaries is an investment
company within the meaning of the Investment Company Act of 1940, as
amended.
(q) Except as described in the Prospectus, the Company and its
Subsidiaries comply in all material respects with all Environmental Laws
(as defined below), except to the extent that failure to comply with such
Environmental Laws would not individually or in the aggregate have a
Material Adverse Effect. None of the Company or any of its Subsidiaries is
the subject of any pending or, to the knowledge of any of the Issuers,
threatened foreign, federal, state or local investigation evaluating
whether any remedial action by the Company or any of its Subsidiaries is
needed to respond to a release of any Hazardous Materials (as defined
below) into the environment, resulting from the Company's or any of its
Subsidiaries' business operations or ownership or possession of any of
their properties or assets or is in contravention of any Environmental Law
that would, individually or in the aggregate, have a Material Adverse
Effect. None of the Company or any of its Subsidiaries has received any
notice or claim, nor are there pending or, to the knowledge of any of the
Issuers, threatened lawsuits against them, with respect to violations of an
Environmental Law or in connection with any release of any Hazardous
Material into the environment that would have a Material Adverse Effect. As
used herein, "Environmental Laws" means
------------------
<PAGE>
-11-
any foreign, federal, state or local law or regulation applicable to the
Company's or any of its Subsidiaries' business operations or ownership or
possession of any of their properties or assets relating to environmental
matters, and "Hazardous Materials" means those substances that are
-------------------
regulated by or form the basis of liability under any Environmental Laws.
(r) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act which have not been described in the
Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Securities Act.
(s) No relationship, direct or indirect, exists between or among the
Company and its Subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand,
which is required to be described in the Prospectus which is not so
described in the Prospectus or incorporated therein by reference as
permitted by the Securities Act.
(t) No labor problem exists with the employees of the Company or any
of its Subsidiaries or, to the knowledge of the Issuers, is imminent that,
in either case, would have a Material Adverse Effect.
(u) Except as disclosed in the Prospectus, all United States federal
income tax returns and all foreign tax returns of the Company and its
Subsidiaries required by law to be filed have been filed (taking into
account extensions granted by the applicable federal governmental agency)
and all taxes shown by such returns or otherwise assessed, which are due
and payable, have been paid, except for such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been
provided and except for such taxes the payment of which would not
individually or in the aggregate result in a Material Adverse Effect. All
other corporate franchise and income tax returns of the Company and its
Subsidiaries required to be filed pursuant to applicable foreign, federal,
state or local laws have been filed, except insofar as the failure to file
such returns would not individually or in the aggregate result in a
Material Adverse Effect, and all taxes shown on such returns or otherwise
assessed which are due and payable have been paid, except for such taxes,
if any, as are being contested in good faith and as to which adequate
reserves have been provided and except for such taxes the payment of which
would not individually or in the aggregate result in a Material Adverse
Effect.
(v) The Company and each of its Subsidiaries maintain (and in the
future will maintain) a system of internal accounting controls sufficient
to provide reasonable
<PAGE>
-12-
assurances that (A) transactions are executed in accordance with
management's general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(w) The Company and each of its Subsidiaries is in compliance with,
and each such entity has not received any notice of any outstanding
violation of, all laws, regulations, ordinances and rules applicable to it
and its operations, except, in either case, where any failure by the
Company or any of its Subsidiaries to comply with any such law, regulation,
ordinance or rule would not individually or in the aggregate result in a
Material Adverse Effect.
(x) Neither the issuance, sale or delivery of the Securities and the
Guarantees nor the application of the proceeds thereof by the Company as
set forth in the Prospectus will violate Regulations T, U or X of the Board
of Governors of the Federal Reserve System or any other regulation of such
Board of Governors.
(y) Each of the Company and its Subsidiaries is, and immediately
after the Closing Date will be, Solvent. As used herein, the term "Solvent"
-------
means, with respect to any such entity on a particular date, that on such
date (A) the fair market value of the assets of such entity is greater than
the amount that will be required to pay the probable liabilities of such
entity on its debts as they become absolute and matured, (B) assuming the
sale of the Securities as contemplated by this Agreement and as described
in the Prospectus, such entity is not incurring debts or liabilities beyond
its ability to pay as such debts and liabilities mature, (C) such entity is
able to realize upon its assets and pay its debts and other liabilities,
including contingent obligations, as they mature and (D) such entity does
not have unreasonably small capital.
(z) Other than this Agreement, neither the Company nor any Subsidiary
is a party to any contract, agreement or understanding with any person that
would give rise to a valid claim against the Issuers or any Subsidiary or
the Underwriter for a brokerage commission, finders' fee or like payment in
connection with the offering and sale of the Securities.
(aa) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied by the Company.
<PAGE>
-13-
(bb) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the
Preliminary Prospectus or the Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good faith.
Any certificate signed by an officer of any of the Issuers and
delivered to the Underwriter or to counsel for the Underwriter at or prior to
the Closing Date pursuant to any section of this Agreement or the transactions
contemplated hereby shall be deemed a representation and warranty by such
Issuer, to the Underwriter as to the matters covered thereby.
5. Each of the Issuers covenants and agrees with the Underwriter as
follows:
(a) in respect of the offering of the Securities, the Issuers will
(i) prepare a Prospectus Supplement setting forth the aggregate principal
amount of each type of Securities covered thereby and their terms not
otherwise specified in the Basic Prospectus pursuant to which the
Securities are being issued, the name of the Underwriter participating in
the offering, the price at which the Securities are to be purchased by the
Underwriter from the Issuers, the initial public offering price, the
applicable selling concession and reallowance, if any, and such other
information as the Underwriter and the Issuers deem appropriate in
connection with the offering of the Securities, (ii) file the Prospectus in
a form approved by the Underwriter pursuant to Rule 424 under the
Securities Act no later than the Commission's close of business on the
second Business Day following the date of determination of the offering
price of the Securities and (iii) furnish copies of the Prospectus to the
Underwriter and to such dealers as the Underwriter shall specify in New
York City as soon as practicable (but in any event in sufficient time as to
allow the Underwriter and such dealers to deliver such Prospectus prior to
or simultaneously with confirmations of sale) after the date of this
Agreement in such quantities as the Underwriter may reasonably request;
(b) to deliver, at the expense of the Issuers, to the Underwriter a
total of three signed copies of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits, and,
during the period mentioned in paragraph (f) below, to the Underwriter and
to dealers effecting transactions in the Securities as many copies of the
Prospectus (including all amendments and supplements thereto) as the
Underwriter may reasonably request;
(c) to furnish to the Underwriter without charge, as many copies of
the exhibits and documents incorporated by reference in the Registration
Statement as the Underwriter may reasonably request;
<PAGE>
-14-
(d) (i) at any time when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act in connection with sales of
Securities, not to file any amendment to the Registration Statement or any
Rule 462(B) Registration Statement or to make any amendment or supplement
to the Prospectus of which the Underwriter shall not previously have been
advised or to which the Underwriter or counsel for the Underwriter shall
reasonably object; and to prepare and file with the Commission, promptly
upon the Underwriter's reasonable request, any amendment to the
Registration Statement, Rule 462(B) Registration Statement, or amendment or
supplement to the Prospectus that, in the opinion of counsel for the
Underwriter, may be necessary in connection with the distribution of the
Securities by the Underwriter, and to use its best efforts to cause the
same to become promptly effective and (ii) if applicable, the Prospectus
and any amendments or supplements thereto furnished to the Underwriter will
be identical in content to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T;
(e) to advise the Underwriter promptly, and to confirm such advice in
writing, (i) when any amendment to the Registration Statement shall have
become effective, (ii) when any supplement to the Prospectus or any
amendment to the Prospectus has been filed and to furnish the Underwriter
with copies thereof, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose, (v) of the occurrence of
any event, within the period referenced in paragraph (f) below, as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances in which such statements are made, not misleading, and (vi)
of the receipt by any of the Issuers of any notification with respect to
any suspension of the qualification of the Securities for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its commercially reasonable best efforts to
prevent the issuance of any such stop order, or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, or of
any order suspending any such qualification of the Securities, or
notification of any such order thereof and, if issued, to use its
commercially reasonable best efforts to obtain as soon as possible the
withdrawal thereof;
<PAGE>
-15-
(f) if, during such period of time after the first date of the public
offering of the Securities as in the reasonable opinion of counsel for the
Underwriter a prospectus relating to the Securities is required by law to
be delivered in connection with sales by the Underwriter or any dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances in which such statements are made, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with applicable federal and state securities law, to reasonably
promptly prepare and furnish, to the Underwriter and to the dealers (whose
names and addresses the Underwriter will furnish to the Company) to which
Securities may have been sold by the Underwriter and to any other dealers
upon request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will comply with applicable federal and state securities law;
provided, however, that any amendments or supplements made more than one
-------- -------
year after the first date of the public offering of the Securities shall be
made at the expense of the Underwriter;
(g) to use its commercially reasonable best efforts to qualify the
Securities for offer and sale under the securities or Blue Sky and real
estate syndication laws of such jurisdictions as the Underwriter shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Securities and to pay all fees
and expenses (including fees and disbursements of counsel to the
Underwriter) incurred in connection with such qualification; provided that
the Issuers shall not be required to file a general consent to service of
process in any jurisdiction or to qualify as a foreign corporation in any
jurisdiction, and provided, further, that all fees and expenses incurred in
--------
connection with qualifying the Securities for offer and sale after the
first anniversary of the public offering of such Securities shall be paid
by the Underwriter;
(h) to make generally available to its security holders and to the
Underwriter, as soon as practicable, an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of
the Company and the Subsidiaries occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(i) for such period as the Securities remain outstanding, to furnish
to the Underwriter copies of all reports or other communications (financial
or other) furnished to holders of the Securities and copies of any reports
and financial statements furnished to or filed with the Commission, the
National Association of Securities Dealers, Inc. (the "NASD") or any
----
national securities exchange;
<PAGE>
-16-
(j) during the period when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act in connection with sales of
the Securities, to file all documents required to be filed by it with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the
time periods required by the Exchange Act;
(k) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid
all costs and expenses incident to the performance of the obligations of
the Issuers hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution and delivery of the Securities (including the payment
of any stamp tax or duty in connection therewith), (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any Preliminary Prospectus
(including in each case all exhibits, amendments and supplements thereto),
(iii) incurred in connection with the registration or qualification of the
Securities under the applicable securities laws of such jurisdictions as
the Underwriter may reasonably designate (including fees of counsel for the
Underwriter and its reasonable disbursements in connection therewith), (iv)
in connection with the listing or proposed listing of securities on any
securities exchange, (v) related to any required filing with, and review
by, the NASD, (vi) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement and the
furnishing to the Underwriter and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided, (vii) any expenses incurred by the Company in connection with a
"road show" presentation to potential investors, (viii) incident to the
preparation, printing and filing of the Listing Particulars (including all
exhibits, amendments and supplements thereto) and (ix) the cost and charges
of any transfer agent, registrar, listing agent, paying agent or custodian;
(l) the Issuers will use the net proceeds received by them from the
sale of the Securities pursuant to this Agreement in the manner specified
in the Prospectus Supplement under the caption "Use of Proceeds";
---------------
(m) the Issuers will use their best efforts to do and perform all
things required to be done and performed under this Agreement by the
Issuers prior to the Closing Date and to satisfy all conditions precedent
to the delivery of the Securities;
(n) to take all reasonable action necessary to enable Moody's
Investors Service, Inc. ("Moody's") and Standard & Poor's Ratings Group
-------
("S&P") or their respective successors or assigns, to provide their
---
respective credit ratings of the Securities, as specified in Schedule I
hereto;
<PAGE>
-17-
(o) for a period of 90 days from the date of the Prospectus, not to
offer for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any offer,
sale, contract for sale of or other disposition of any unsecured debt
securities denominated in sterling, issued or guaranteed by the Company or
any of its Subsidiaries (other than the Securities) without the prior
written consent of Barclays, which consent shall not be unreasonably
withheld; provided that in the case of both this paragraph (o) and
paragraph (p) below, the Company shall be permitted (i) to file a shelf
registration statement on Form S-3 for the subsequent offer and sale of any
combination of securities in one or more offerings, (provided that the
Company shall not during such 30 and 90 day periods offer any such
securities by one or more supplemental prospectuses or otherwise), and (ii)
the Company shall be permitted to file a registration statement on Form S-4
for the issuance of Securities to be issued in exchange for the Company's 8
1/2% Series B Senior Notes due 2009.
(p) for a period of 30 days from the date of the Prospectus, not to
offer for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any offer,
sale, contract for sale of or other disposition of any unsecured debt
securities issued or guaranteed by the Company or any of its Subsidiaries
(other than the Securities) without the prior written consent of Barclays,
which consent shall not be unreasonably withheld; and
(q) to use its best efforts to (i) list the Securities on the
Luxembourg Stock Exchange promptly after closing and to maintain such
listing (or listing on an alternate exchange with the written consent of
the Underwriter) for as long as the Securities are outstanding and (ii)
permit the Securities to be eligible for clearance and settlement through
the Euroclear System and Clearstream for so long as the Securities are
outstanding.
6. The obligation of the Underwriter hereunder to purchase the
Securities on the Closing Date is subject to the performance by each of the
Issuers of its respective obligations hereunder and to the following additional
conditions:
(a) (i)(A) the Registration Statement (excluding the Rule 462
Registration Statement) shall remain effective (or if a post-effective
amendment is required to be filed under the Securities Act, such post-
effective amendment shall have become effective not later than 5:00 P.M.,
New York City time, on the date hereof), (B) if the Company has elected to
rely on Rule 462(B), the Rule 462 Registration Statement shall have become
effective not later than 10:00 P.M., New York City time, on the date
hereof, and (C) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in effect,
and no proceedings for
<PAGE>
-18-
such purpose shall be pending before or threatened by the Commission; (ii)
the Prospectus shall have been filed with the Commission pursuant to Rule
424 within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act and in accordance with
Section 5(a) hereof; and (iii) all requests for additional information by
the Commission shall have been complied with to the reasonable satisfaction
of the Underwriter;
(b) the representations and warranties of each of the Issuers
contained herein shall be true and correct on and as of the Closing Date as
if made on and as of the Closing Date and each of the Issuers shall have
complied with all agreements and all conditions on its respective part to
be performed or satisfied hereunder at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that indicates a
potential downgrading, in the rating accorded any securities of or
guaranteed by any of the Issuers by any "nationally recognized statistical
rating organization", as such term is defined for purposes of Rule 436
under the Securities Act;
(d) (i) since the respective dates as of which information is given
in the Prospectus and as of the Closing Date, there shall not have been any
change in the capital shares or long-term debt of the Company or any of the
Subsidiaries and there shall not have occurred any event that would have a
Material Adverse Effect or any development involving a prospective Material
Adverse Effect, otherwise than as set forth or contemplated in the
Registration Statement and the Prospectus, the effect of which in the
judgment of the Underwriter makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the
Closing Date, on the terms and in the manner contemplated in the Prospectus
and (ii) neither the Company nor any of the Subsidiaries shall have
sustained since the date of the latest audited financial statements
included in or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus;
(e) the Underwriter shall have received on and as of the Closing
Date, a certificate of an executive officer of the Company with specific
knowledge about the Company's financial matters reasonably satisfactory to
the Underwriter to the effect set
<PAGE>
-19-
forth in subsections (b) through (d) (with respect to the respective
representations, warranties, agreements and conditions of the Company) of
this Section 6;
(f) McDermott, Will & Emery, special counsel for the Company, shall
have furnished to the Underwriter its written opinion addressed to the
Underwriter, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter, substantially in the form of Annex I
hereto;
(g) Nixon Peabody LLP, counsel for the Issuers, shall have furnished
to the Underwriter its written opinion addressed to the Underwriter, dated
the Closing Date, in form and substance reasonably satisfactory to the
Underwriter, substantially in the form of Annex II hereto;
(h) each of Piper Marbury Rudnick & Wolfe LLP and Clifford Chance,
local counsel for the Issuers, shall each have furnished to the Underwriter
its written opinion addressed to the Underwriter, dated the Closing Date,
in form and substance reasonably satisfactory to the Underwriter,
substantially in the form of Annex III hereto;
(i) on the date hereof, and also on the Closing Date, Arthur Andersen
LLP and KPMG LLP shall each have furnished to the Underwriter letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to the Underwriter, containing statements and information of
the type customarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained or incorporated by reference in the Registration
Statement and the Prospectus, including statements with respect to a review
in accordance with SAS 71 of any interim financial information contained or
incorporated by reference in the Registration Statement and the Prospectus;
(j) the Underwriter shall have received on and as of the Closing Date
an opinion addressed to the Underwriter of Cahill Gordon & Reindel, counsel
to the Underwriter, with respect to the due authorization and valid
issuance of the Securities, the Registration Statement, the Prospectus and
such other related matters as the Underwriter may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(k) on or prior to the Closing Date, the Issuers shall have furnished
to the Underwriter such further certificates and documents as the
Underwriter shall reasonably request;
<PAGE>
-20-
(l) at the Closing Date, the Securities shall have the ratings
accorded by any "nationally recognized statistical organization," as
defined by the Commission for purposes of Rule 436(G)(2) under the Act as
specified in Schedule I hereto, and the Company shall have delivered to the
Underwriter a letter, dated as of such date, from each such rating
organization, or other evidence reasonably satisfactory to the Underwriter,
confirming that the Securities have such ratings. Since the date hereof,
there shall not have occurred a downgrading in the rating assigned to the
Securities or any of the Issuers' securities or any Subsidiary's other
securities by any such rating organization, and no such rating organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of the Securities or any of
the Company's or any Subsidiary's other securities; and
(m) the Securities have been approved for listing on the Luxembourg
Stock Exchange.
If any of the foregoing conditions is not satisfied on or before the
Closing Date, this Agreement shall (subject to the terms hereof) terminate on
such date and the parties hereto shall be under no further obligations arising
out of this Agreement (except as otherwise specifically provided and except for
any liability arising before or in relation to such termination), provided that
the Underwriter may, in its sole discretion, waive any of the conditions
contained in this Section 6 or any part of them.
7. The Issuers, jointly and severally, agree to indemnify and hold
harmless the Underwriter, its officers and directors, Barclays Capital Inc. (the
Underwriter's United States broker-dealer affiliate), and each person, if any,
who controls the Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages or liabilities (including, without limitation, the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) to which such Underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses, claims damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Issuers shall have furnished any amendments or supplements thereto) or any
Preliminary Prospectus, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any
Underwriter's Information; provided, however, that the Issuers shall not be
-------- -------
liable to the Underwriter under this paragraph of Section 7 to the extent that
any such loss, claim, damage or liability results solely from an untrue
statement of a material fact contained
<PAGE>
-21-
in, or the omission of a material fact from, a Preliminary Prospectus if (i)
such untrue statement or omission was completely corrected in the Prospectus
prior to the written confirmation of the sale of the Securities giving rise to
such liability, (ii) such Underwriter sold Securities to the person alleging
such loss, claim, damage or liability without (to the extent required by
applicable law) sending or giving the Prospectus at or prior to the written
confirmation of the sale of the Securities giving rise to such liability, (iii)
the Issuers had furnished copies of the Prospectus to such Underwriter prior to
the written confirmation of the sale of the Securities giving rise to such
liability and (iv) such Underwriter would not have been subject to such
liability if it had delivered the Prospectus to such person at or prior to the
written confirmation of such sale.
The Underwriter agrees to indemnify and hold harmless each of the
Issuers, its directors, its officers who sign the Registration Statement and
each person, if any who controls such Issuer within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and to
the same extent as the foregoing indemnity from the Issuers to the Underwriter,
but only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
any Underwriter's Information.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
------------------
notify the person or persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing, and such Indemnifying Person, upon request of
-------------------
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 7 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) such
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) such Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to such Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
an Indemnifying Person and an Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that an Indemnifying Person
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriter and such
<PAGE>
-22-
control persons of Underwriter shall be designated in writing by the
Underwriter, and any such separate firm for the Issuers, their respective
directors, their respective officers who sign the Registration Statement and
such control persons of any of the Issuers shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, such Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers on the one hand and the Underwriter on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Issuers on the one
hand and the Underwriter on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Issuers on the one hand and the Underwriter on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
and sale of the Securities (before deducting expenses) received by the Issuers
and the total underwriting commissions received by the Underwriter, in each case
as set forth in the table on the cover of the Prospectus. The relative fault of
the Issuers on the one hand and the Underwriter on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Issuers, on the one hand,
or by the Underwriter on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
Each of the Issuers and the Underwriter agrees that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation that does not take
- --------
account of the equitable considerations re-
<PAGE>
-23-
ferred to in the immediately preceding paragraph. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7, in no
event shall an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Underwriter or any person controlling the Underwriter or by or on behalf
of the Issuers, their respective officers or directors or any other person
controlling any of the Issuers and (iii) acceptance of and payment for any of
the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriter, by notice given to the
Company, if after the execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, the New York Stock Exchange, the American
Stock Exchange, the NASDAQ National Market, the Chicago Mercantile Exchange, the
Chicago Board of Options Exchange, the Chicago Board of Trade, the London Stock
Exchange or the Luxembourg Stock Exchange, (ii) trading of any securities of or
guaranteed by any of the Issuers shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or New York
State authorities, (iv) a general moratorium on commercial banking activities in
London shall have been declared by United Kingdom or other governmental
authorities, or (v) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Underwriter, is material and adverse and that, in the
judgment of the Underwriter, makes it impracticable to market the Securities on
the terms and in the manner contemplated in the Prospectus.
<PAGE>
-24-
9. This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
10. If this Agreement shall be terminated by the Underwriter because
of any failure or refusal on the part of any of the Issuers to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason any of the Issuers shall be unable to perform its respective obligations
under this Agreement or any condition of the Underwriter's obligations cannot be
fulfilled, the Issuers agree, jointly and severally, to promptly reimburse the
Underwriter for all reasonable out-of-pocket expenses (including the fees and
expenses of their counsel) incurred by the Underwriter in connection with this
Agreement or the offering contemplated hereunder.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriter shall be given, c/o
Barclays Bank PLC, 5 The North Colonnade, Canary Wharf, London E14 4BB
(Facsimile: +44 (0) 207) 773-4934), Attention Head of Legal Department, with a
copy to Cahill Gordon & Reindel, 80 Pine Street, New York, New York, 10005
(Facsimile: (212) 269-5420), Attention Daniel J. Zubkoff, Esq. Notices to the
Company shall be given c/o the Company at 300 WillowBrook Office Park, Fairport,
New York, 14450 (Facsimile: (716) 218-2165), Attention David Sorce, Corporate
Counsel, with a copy to McDermott, Will & Emery, 227 West Monroe Street,
Chicago, Illinois, 60606-5096 (Facsimile: (312) 984-7700), Attention Bernard
Kramer, Esq.
11. This Agreement shall inure to the benefit of and be binding upon
the Underwriter, the Company, the Guarantors and any controlling person referred
to herein and their respective successors, heirs and legal representatives.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. No purchaser of Securities from the Underwriter shall be
deemed to be a successor by reason merely of such purchase.
12. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
13. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
<PAGE>
-25-
If the foregoing is in accordance with your understanding, please sign
and return fourteen counterparts hereof.
Very truly yours,
CANANDAIGUA BRANDS, INC.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Executive Vice
President and Chief Financial Officer
BATAVIA WINE CELLARS, INC.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Treasurer
CANANDAIGUA WINE COMPANY, INC.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Treasurer
CANANDAIGUA EUROPE LIMITED
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Treasurer
CANANDAIGUA LIMITED
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Finance Director
POLYPHENOLICS, INC.
<PAGE>
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President and Treasurer
ROBERTS TRADING CORP.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, President and Treasurer
CANANDAIGUA B.V.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Authorized Representative
FRANCISCAN VINEYARDS, INC.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President and Treasurer
ALLBERRY, INC.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President and Treasurer
CLOUD PEAK CORPORATION
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President and Treasurer
M.J. LEWIS CORP.
By:
<PAGE>
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President and Treasurer
MT. VEEDER CORPORATION
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President and Treasurer
BARTON INCORPORATED
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President
BARTON BRANDS, LTD.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President
BARTON BEERS, LTD.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President
BARTON BRANDS OF CALIFORNIA, INC.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President
BARTON BRANDS OF GEORGIA, INC.
By:
<PAGE>
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President
BARTON CANADA, LTD.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President
BARTON DISTILLERS IMPORT CORP.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President
BARTON FINANCIAL CORPORATION
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President
STEVENS POINT BEVERAGE CO.
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President
MONARCH IMPORT COMPANY
By:
/s/ Thomas S. Summer
------------------------------------
Thomas S. Summer, Vice President
<PAGE>
Accepted:
BARCLAYS BANK PLC
By: /s/ Frank Sekula
Name: Frank Sekula
Title: Director
<PAGE>
SCHEDULE I
Underwriter: Barclays Bank PLC
Underwriting Agreement Dated: May 5, 2000
Registration Statement No.: 333-91587
Title of Securities: 8 1/2% Series C Senior Notes due 2009
(the "Notes")
Aggregate Principal Amount: (Pounds)80,000,000
Price to Public: 99.5% per Note
Purchase Price: 98.5% per Note
Underwriting Discount: 1.0% per Note
Indenture: Indenture dated as of February 25,
1999, as supplemented by Supplemental
Indenture No. 3, dated, August 6, 1999,
as further supplemented by Supplemental
Indenture No. 4, to be dated as of May
15, 2000, each between the Company, the
Guarantors and the Trustee.
Maturity: November 15, 2009
Interest Rate: 8 1/2%
Interest Payment Dates: Interest on the Notes will accrue from
the Closing Date and be payable semi-
annually on May 15 and November 15 of
each year, commencing November 15,
2000.
Optional Redemption Provisions: The Notes are redeemable at any time at
the option of the Company in whole or
in part, at a redemption price equal to
the sum of (i) 100% of the principal
amount of the Securities being redeemed
and (ii) the sum of the present values
of the remaining scheduled payments of
principal
<PAGE>
-2-
and interest on such Securities,
discounted to the date of redemption,
on a semi-annual basis, at the Adjusted
Gilt Rate (as defined in the
Prospectus) plus 50 basis points, plus,
in each case, accrued interest thereon
to the date of redemption.
Mandatory Redemption Provisions: None.
Sinking Fund Provisions: None.
Defeasance Provisions: Standard defeasance and covenant
defeasance provisions.
Ratings: Standard & Poor's: BB
Moody's Investors Service: Ba2
Lockup Provisions: None.
Other Provisions: None.
Closing Date: May 15, 2000
Closing Location: Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005
<PAGE>
ANNEX I
Form of Opinion of McDermott, Will & Emery
(i) The Company has been duly incorporated, is validly existing and
in good standing under the laws of the State of Delaware. The Company has the
corporate power and authority to execute, deliver and perform all of its
respective obligations under the Notes, the Indenture and the Underwriting
Agreement (the "Transaction Documents").
(ii) No consent, approval, authorization, order, registration or
qualification of or with any governmental authority or agency or, to our
knowledge, any court or similar body is required under the laws of the United
States, the State of New York and the General Corporation Law of the State of
Delaware for the execution, delivery or performance of the Transaction Documents
by the Company or any Guarantor, as the case may be, except such as may be
required under state securities or blue sky laws in connection with the purchase
and distribution of the securities by the Underwriter (as to which no opinion is
required).
(iii) The execution, delivery and performance of the Transaction
Documents by the Company and the application of the net proceeds from the sale
of the Securities in the manner described in the Prospectus under the caption
"Use of Proceeds" do not and will not (A) conflict with the charter and by-laws
of the Company, (B) conflict with, constitute a breach of or a default by the
Company or any Guarantor, as the case may be, under, or result in the creation
or imposition of any lien, security interest or encumbrance upon any of the
assets of the Company or any Guarantor, as the case may be, pursuant to the
terms of the Credit Agreement or any other indenture, mortgage, deed of trust,
loan or credit agreement, bond, debenture, note, lease or other agreement or
instrument listed on Exhibit I hereto, (C) contravene the General Corporation
Law of the State of Delaware or any statute, rule or regulation under the laws
of the United States and the State of New York applicable to the Company or any
of its properties or (D) to the knowledge of such counsel, conflict with or
violate any judgment, decree or order of any court or governmental agency or
court or body applicable to the Company or any of its properties.
(iv) The Transaction Documents have been duly authorized by the
Company. The Transaction Documents and the Guarantees have been duly executed
and delivered by the Company and each of the Guarantors, as applicable. The sale
and the issuance of the Notes, and the execution and delivery thereof, have been
duly authorized by requisite corporate action of the Company. The Securities
have been duly delivered to the Underwriter by the Company and the Guarantors.
<PAGE>
-2-
(v) The Indenture is a valid and binding agreement, enforceable
against the Company and each Guarantor in accordance with its terms, except to
the extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity). When the Notes and the Guarantees have been authenticated in accordance
with the terms of the Indenture, the Notes and the Guarantees will be valid and
binding obligations of the Company and the Guarantors, respectively, entitled to
the benefits of the Indenture and enforceable against the Company and the
Guarantors in accordance with their terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity).
(vi) The Securities and the Indenture conform in all material respects
to the descriptions thereof under the caption "Description of the Notes" in the
Prospectus and "Description of Debt Securities" in the Basic Prospectus. The
statements made in the Prospectus under the captions "Description of the Senior
Credit Facilities" and "Certain United States Federal Income Tax
Considerations," insofar as they describe certain provisions of the Credit
Agreement or matters of law, are accurate in all material respects.
(vii) The Registration Statement was declared effective under the
Securities Act as of December 3, 1999, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the dates specified therein and no stop
order suspending the effectiveness of the Registration Statement has been issued
and, to the knowledge of such counsel, no proceeding for that purpose is pending
or threatened by the Commission.
(viii) As of its date and as of the Closing Date, the Registration
Statement and the Prospectus and any further amendments or supplements thereto
made by the Company prior to the Closing Date (except for the financial
statements, the notes thereto and related schedules and other financial data
included therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Securities Act and
the Rules and Regulations (except that such counsel will not express any opinion
as to the financial statements, schedules and other financial data included
therein or incorporated by reference therein or excluded therefrom, or exhibits
thereto or assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the prospectus except to the extent set forth in
paragraph (vi) of this opinion).
(ix) The Indenture conforms as to form in all material respects with
the requirements of the Trust Indenture Act and the Trust Indenture Act Rules
and Regulations.
<PAGE>
-3-
(x) Neither the Company nor any Subsidiary is required to register
under the Investment Company Act of 1940, as amended (the "1940 Act"), as an
--------
"investment company" as such term is defined in the 1940 Act.
(xi) Neither the issuance, sale or delivery of the Securities nor the
application of the proceeds thereof by the Company as set forth in the
Prospectus will violate Regulations T, U or X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board of Governors.
Such opinion shall also contain a statement that such counsel has
participated in conferences with officers and representatives of the Company and
the Subsidiaries, and representatives of the independent accountants of the
Company and the Underwriter at which the contents of the Registration Statement
and the Prospectus and related matters were discussed and that although such
counsel need not pass upon or assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, and need not make any independent check or
verification thereof, except as set forth in paragraph (vi) of this form of
opinion, based upon the foregoing, no facts came to such counsel's attention to
lead such counsel to believe that the Registration Statement or the Prospectus
(including the documents incorporated therein by reference (except to the extent
statements contained in such documents have been modified or superseded by
statements contained in the Prospectus)), as of its date and as of the Closing
Date, contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. Such counsel need not express an opinion or belief as
to the financial statements, the notes thereto, schedules and other financial
data included therein, or incorporated by reference into, or excluded from the
Registration Statement or the Prospectus.
In rendering such opinions, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates or statements of
responsible officers of the Company and certificates or other written statements
of officials of jurisdictions having custody of documents respecting corporate
existence or good standing.
<PAGE>
EXHIBIT I TO ANNEX I
1. Importer Agreement by and between Barton Beers, Ltd. and Extrade, S.A. de
C.V. dated as of November 22, 1996.
2. Indenture dated as of December 27, 1993 among the Company, its subsidiaries
and Chemical Bank, as trustee, as amended by (i) the First Supplemental
Indenture dated as of August 3, 1994 among the Company, Canandaigua West,
Inc., and Chemical Bank, as trustee, (ii) the Second Supplemental Indenture
dated as of August 25, 1995 among the Company, V Acquisition Corp. (a
subsidiary of the Company now known as The Viking Distillery, Inc.), and
Chemical Bank, as trustee, (iii) Third Supplemental Indenture dated as of
December 19, 1997 among the Company, Canandaigua Europe Limited, Roberts
Trading Corp. and The Chase Manhattan Bank, as trustee, (iv) the Fourth
Supplemental Indenture dated as of October 2, 1998 among the Company,
Polyphenolics, Inc., and The Chase Manhattan Bank, as trustee, and (v) the
Fifth Supplemental Indenture dated as of December 11, 1998 among the
Company, Canandaigua B.V., and The Chase Manhattan Bank, as trustee.
3. Indenture with respect to the 8 3/4% Series C Senior Subordinated Notes due
2003 dated as of October 29, 1996 among the Company, its Subsidiaries and
Harris Trust and Savings Bank, as trustee, as amended by (i) the First
Supplemental Indenture dated as of December 19, 1997 among the Company,
Canandaigua Europe Limited, Roberts Trading Corp. and Harris Trust and
Savings Bank, (ii) the Second Supplemental Indenture dated as of October 2,
1998 among the Company, Polyphenolics, Inc. and Harris Trust and Savings
Bank, and (iii) the Third Supplemental Indenture dated as of December 11,
1998 among the Company, Canandaigua B.V. and Harris Trust and Savings Bank.
4. Indenture dated as of February 25, 1999 among the Company, the Guarantors
named therein and Harris Trust and Savings Bank as trustee, as amended by
Supplemental Indenture No. 1 dated as of February 25, 1999 among the
Company, the Guarantors named therein and Harris Trust and Savings Bank as
trustee, as further amended by Supplemental Indenture No. 2 dated as of
August 4, 1999 among the Company, the Guarantors named therein and Harris
Trust and Savings Bank, as trustee, as further amended by Supplemental
Indenture No. 3 dated as of August 6, 1999 among the Company, the New
Guarantors named therein and Harris Trust and Savings Bank, as trustee.
5. Barton Incorporated Management Incentive Plan.
<PAGE>
-2-
6. Barton Brands, Ltd. Deferred Compensation Plan.
7. Marvin Sands Split Dollar Insurance Agreement.
8. Long-Term Stock Incentive Plan, which amends and restates the Canandaigua
Wine Company, Inc. Stock Option and Stock Appreciation Right Plan, as
amended by Amendment Number One to the Long-Term Stock Incentive Plan of the
Company.
9. Incentive Stock Option Plan of the Company, as amended by Amendment Number
One to the Incentive Stock Option Plan of the Company.
10. Annual Management Incentive Plan of the Company, as amended by Amendment
Number One to the Annual Management Incentive Plan of the Company.
11. Asset Purchase Agreement dated February 21, 1999 by and among the Company
and Diageo Inc., UDV Canada Inc., and United Distillers Canada Inc.
12. Stock Purchase Agreement by and between Canandaigua Wine Company, Inc. and
Moet Hennessy, Inc., dated as of April 1, 1999.
13. Stock Purchase Agreement between Franciscan Vineyards, the Selling
Shareholders and Selling Stockholders named therein, and Canandaigua Brands,
Inc., dated April 21, 1999; Vineyard Purchase Agreement between Canandiagua
Brands, Inc. and Eckes Properties, Inc., dated as of April 21, 1999;
Vineyard Purchase Agreement between Canandaigua Brands, Inc. and Stonewall
Canyon Vineyards, LLC, dated as of April 21, 1999; Grape Purchase Agreement,
between Franciscan Vineyards, Inc. Huneeus-Chantre Properties, LLC and
Canandaigua Brands, Inc., dated as of June 4, 1999, Guaranty, by Canandaigua
Brands, Inc. in favor of Huneeus-Chantre Properites LLC, dated as of June 4,
1999; Grape Purchase Agreement, between Franciscan Vineyards, Inc. H/Q
Vineyards LLC and Canandaigua Brands, Inc.; Guaranty, by Canandaigua Brands,
Inc. in favor of H/Q. Vineyards LLC, dated as of June 4, 1999; Wine
Processing Agreement, between Franciscan Vineyards, Inc., H/Q Wines LLC and
Canandaigua Brands, Inc., dated as of June 4, 1999; Guaranty, by Canandaigua
Brands, Inc. in favor of H/Q Wines LLC, dated as of June 4, 1999; ACSA Stock
Agreement, among Alto de Casablanca S.A., Franciscan Vineyards, Inc. and
Asesoria e Inversiones Leo S.A., dated as of June 1, 1999; EVSA Stock
Agreement, among Empresas Vitivinicolas S.A., Franciscan Vineyards, Inc. and
Asesoria e Inversiones Leo S.A., dated as of June 1, 1999; ACSA Distribution
Agreement, by and between Franciscan Vineyards, Inc., Alto de Casablanca
S.A., H/Q Wines LLC, International Brand Management, Ltd. and Canandaigua
Brands, Inc., dated as of June 4, 1999.
<PAGE>
-3-
14. Credit Agreement, dated as of October 6, 1999 between the Company, the
Guarantors party thereto and the Agents and Lenders party thereto.
<PAGE>
ANNEX II
Form of Opinion of Nixon Peabody LLP
(i) Each of the Subsidiaries of the Company listed on Exhibit I
attached hereto (the "Guarantors") is a corporation duly incorporated, in each
----------
case, validly existing and in good standing under the laws of its respective
jurisdiction of incorporation. The Company and each of the Guarantors is duly
qualified and in good standing as a foreign corporation in each jurisdiction
listed for it on Exhibit II attached hereto. The Company and each Guarantor has
all requisite corporate power to own, lease and license its respective
properties and conduct its business as now being conducted and as described in
the Prospectus. All of the issued and outstanding capital stock of each
Guarantor has been duly authorized and validly issued and is fully paid and non-
assessable and were not issued in violation of any preemptive or similar rights
of stockholders arising under the corporate law of the state of incorporation of
such Guarantor, the charter or bylaws of such Guarantor, or, to the best
knowledge of such counsel, any agreement to which such Guarantor is party, and,
to the best knowledge of such counsel, is owned by the Company, free and clear
of any lien, adverse claim, security interest, restriction on transfer,
shareholders' agreement, voting trust or other defect of title whatsoever except
for the liens under the Credit Agreement.
(ii) The Guarantors have the corporate power and authority to execute,
deliver and perform all of their respective obligations under the Underwriting
Agreement, the Indenture and the Guarantees. The execution, delivery and
performance of the Underwriting Agreement, Indenture, Notes and Guarantees by
the Company or any Guarantor, does not and will not (A) conflict with the
charter or bylaws of any Guarantor, (B) contravene the General Corporation Law
of the State of Delaware or any statute, rule or regulation under the laws of
the State of New York applicable to the Guarantors or any of their respective
properties, or (C) to the knowledge of such counsel, conflict with or violate
any judgment, decree or order of any court or governmental agency or court or
body applicable to any of the Guarantors or any of their respective properties.
(iii) The Underwriting Agreement, the Indenture and the Guarantees
have been duly authorized, executed and delivered by each Guarantor. The sale
and issuance of the Guarantees and the execution and delivery thereof have been
duly authorized by requisite corporate action of the Guarantors.
(iv) To the best knowledge of such counsel after due inquiry, except
as described or referred to in the Registration Statement and Prospectus: there
is not pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or any of the Guarantors is a party, or to
which the property of the Company or any
<PAGE>
-2-
of the Guarantors is subject, before or brought by any court or governmental
agency or body, which, if determined adversely to the Company or any of the
Guarantors, will individually or in the aggregate result in any material adverse
change in the business, financial position, net worth, results of operations or
prospects, or materially adversely affect the properties or assets, of the
Company and the Guarantors taken as a whole or will materially adversely affect
the consummation of the transactions contemplated by the Prospectus; and all
pending legal or governmental proceedings to which the Company or any of the
Subsidiaries is a party or that affect any of their respective properties, that
are not described in the Registration Statement and Prospectus, including
ordinary routine litigation incidental to the business, considered in the
aggregate, will not result in a material adverse change in the business,
financial position, net worth, results of operations or prospects, or materially
adversely affect the properties or assets, of the Company and the Guarantors
taken as a whole.
(v) Each of the documents filed by the Company under the Exchange Act
and incorporated by reference into the Prospectus (collectively, the
"Documents"), at the time it was filed with the Commission, appeared on its face
---------
to be appropriately responsive in all material respects to the requirements of
the Exchange Act, and the rules and regulations as promulgated by the Commission
under the Exchange Act, except that such counsel need not express any opinion as
to the financial statements, schedules, and other financial data included
therein or incorporated by reference therein, or excluded therefrom or the
exhibits thereto (except to the extent set forth in the next sentence of this
paragraph) and such counsel need not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Documents. To such
counsel's knowledge without having made any independent investigation and based
upon representations of officers of the Company as to factual matters, there
were no contracts or documents required to be filed as exhibits to such
Documents on the date they were filed which were not so filed.
<PAGE>
EXHIBIT I TO ANNEX II
Guarantors
----------
<TABLE>
<CAPTION>
Guarantor State of Incorporation
- --------- ----------------------
<S> <C>
Barton Incorporated Delaware
Barton Brands, Ltd. Delaware
Batavia Wine Cellars, Inc. New York
Canandaigua Wine Company, Inc. New York
Franciscan Vineyards, Inc. Delaware
</TABLE>
<PAGE>
EXHIBIT II TO ANNEX II
----------------------
<TABLE>
<CAPTION>
Company Foreign Qualifications
- ------- ----------------------
<S> <C>
Canandaigua Brands, Inc. New York
California
Florida
Georgia
Michigan
Oklahoma
New Hampshire
North Carolina
New Jersey
Barton Incorporated None
Barton Brands, Ltd. California
Kentucky
Illinois
Florida
Maine
Oklahoma
New Hampshire
North Carolina
New Jersey
West Virginia
Batavia Wine Cellars, Inc. New Jersey
Canandaigua Wine Company, Inc. California
Washington
Oregon
Franciscan Vineyards California
</TABLE>
<PAGE>
ANNEX III
---------
Form of Opinion of Clifford Chance and Piper Marbury Rudnick & Wolfe LLP
(i) [ ]/1/ (the "Company") has been duly organized and is validly
-------
existing as a corporation and is in good standing under the laws of its
jurisdiction of incorporation.
(ii) The Company has the corporate power and authority to execute,
deliver and perform its obligations under the Underwriting Agreement, the
Indenture and the Guarantee. The Indenture, the Underwriting Agreement and the
Guarantee have been duly authorized for execution and delivery by the Company.
The sale and issuance by the Company of its Guarantee and the execution and
delivery thereof has been duly authorized by requisite corporation action of the
Company.
(iii) The execution, delivery, and performance by the Company of the
Underwriting Agreement, the Indenture and the Guarantee does not and will not
(A) conflict with the charter or By-Laws of the Company, (B) contravene and
statute, rule or regulation under the laws of its jurisdiction of incorporation
applicable to the Company and its properties, or (c) to counsel's knowledge,
conflict with or violate any judgment, decree or order of any court or
governmental agency or court or body applicable to the Company and its
properties (except that no opinion need be expressed with respect to the
securities or Blue Sky laws of its jurisdiction of incorporation)./2/
BST99 1124851-1.025309.0011
- -------------------------
/1/ This opinion will be given as to Canadaigua Limited by Clifford Chance and
as to Barton Beers, Ltd. by Piper Marbury Rudnick & Wolfe LLP.
/2/ For purposes of the Clifford Chance opinion only, paragraph (iii)(c) of
this form of opinion may be substituted for by an officer's certificate.
<PAGE>
EXHIBIT 4.1
Draft 5/12/2000
================================================================================
FORM OF SUPPLEMENTAL INDENTURE NO. 4
CANANDAIGUA BRANDS, INC.,
as Issuer,
the Guarantors named herein
and
HARRIS TRUST AND SAVINGS BANK,
as Trustee
---------------------
Supplemental Indenture No. 4
Dated as of May 15, 2000
---------------------
(pound)300,000,000.00
8 1/2% Series C Senior Notes due 2009
================================================================================
<PAGE>
CROSS-REFERENCE TABLE
Supplemental
TIA Indenture Indenture
Section Section Section
- ------- -------- -------
310(a)(1) ................................ 11.5
(a)(2) ................................ 11.5
(a)(3) ................................ N.A. N.A.
(a)(4) ................................ N.A. N.A.
(b) ................................... 11.4, 11.5
(c) ................................... N.A. N.A.
311(a) ................................... 11.9(a), (c)
(b) ................................... 11.9(b), (c)
(c) ................................... N.A. N.A.
312(a) ................................... 11.11 2.06
(b) ................................... 11.11
(c) ................................... 11.10(a)
313(a) ................................... N.A. N.A.
(b)(1) ................................ 11.10(b)
(b)(2) ................................ 11.10(c)
(c) ................................... 11.10(c)
(d) ................................... 11.10(c)
314(a) ................................... 4.02; 4.07 4.6
(b) ................................... N.A. N.A.
(c)(1) ................................ 3.8
(c)(2) ................................ 3.8
(c)(3) ................................ N.A. N.A.
(d) ................................... N.A. N.A.
(e) ................................... 3.8 11.05
(f) ................................... N.A. N.A.
315(a) ................................... 11.1(a), (b)
(b) ................................... 11.3
(c) ................................... 11.1(a)
(d) ................................... 11.1(a), 11.1(b)
(e) ................................... 7.7
316(a) (last sentence) ................... 2.10
(a)(1)(A) ............................. 7.6
(a)(1)(B) ............................. 7.1, 7.5 6.03
(a)(2) ................................ 8.02
(b) ................................... 7.7
(c) ................................... N.A. N.A.
317(a)(1) ................................ 7.2
(a)(2) ................................ 7.2
(b) ................................... 2.05
318(a) ................................... 3.4
N.A. means Not Applicable
- ----------
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
-i-
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE 1
RELATION TO INDENTURE; DEFINITIONS
Section 1.01. Relation to Indenture ..................................... 1
Section 1.02. Definitions ............................................... 1
Section 1.03. Incorporation by Reference of Trust Indenture Act ......... 14
Section 1.04. Rules of Construction ..................................... 15
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating ........................................... 15
Section 2.02. Execution and Authentication .............................. 16
Section 2.03. Registrar and Paying Agents ............................... 17
Section 2.04. Holders to Be Treated as Owners; Payments of Interest ..... 18
Section 2.05. Paying Agent to Hold Money in Trust ....................... 18
Section 2.06. Holder Lists .............................................. 19
Section 2.07. Transfer and Exchange; Book-Entry Provisions .............. 19
Section 2.08. Replacement Notes ......................................... 24
Section 2.09. Outstanding Notes ......................................... 24
Section 2.10. Treasury Notes ............................................ 25
Section 2.11. Temporary Notes ........................................... 25
Section 2.12. Cancellation .............................................. 25
Section 2.13. Defaulted Interest ........................................ 25
Section 2.14. CUSIP and ISIN Number; Common Code ........................ 26
Section 2.15. Deposit of Moneys; Payments by Principal Paying Agent ..... 26
Section 2.16. Restrictive Legends ....................................... 26
Section 2.17. Substitution of Currency .................................. 27
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee ........................................ 28
Section 3.02. Selection of Notes to Be Redeemed ......................... 28
Section 3.03. Notice of Redemption ...................................... 28
Section 3.04. Effect of Notice of Redemption ............................ 29
Section 3.05. Deposit of Redemption Price ............................... 29
Section 3.06. Notes Redeemed in Part .................................... 29
Section 3.07. Optional Redemption ....................................... 29
Section 3.08. Tax Redemption ............................................ 30
-ii-
<PAGE>
Page
----
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes .......................................... 31
Section 4.02. Provision of Financial Statements ......................... 32
Section 4.03. Waiver of Stay, Extension or Usury Laws ................... 32
Section 4.04. Statement by Officers ..................................... 32
Section 4.05. Corporate Existence ....................................... 32
Section 4.06. Maintenance of Office or Agency ........................... 33
Section 4.07. Compliance with Laws ...................................... 33
Section 4.08. Maintenance of Properties and Insurance ................... 33
Section 4.09. Payment of Taxes and Other Claims; Additional Amounts ..... 33
Section 4.10. Limitation on Indebtedness ................................ 35
Section 4.11. Limitation on Restricted Payments ......................... 37
Section 4.12. Limitation on Transactions with Affiliates ................ 39
Section 4.13. Limitations on Liens ...................................... 39
Section 4.14. Limitation on Sale of Assets .............................. 40
Section 4.15. Limitation on Guarantees by Restricted Subsidiaries ....... 44
Section 4.16. Purchase of Notes upon a Change of Control ................ 45
Section 4.17. Limitation on Restricted Subsidiary Capital Stock ......... 47
Section 4.18. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries ....................... 47
Section 4.19. Designation of Unrestricted Subsidiaries .................. 48
Section 4.20. [Intentionally Omitted] ................................... 49
Section 4.21. Waiver of Certain Covenants ............................... 49
Section 4.22. Limitation of Applicability of Certain Covenants if Notes
Rated Investment Grade .................................. 49
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Company or Any Guarantor May Consolidate, etc., Only
on Certain Terms ........................................ 49
Section 5.02. Successor Substituted ..................................... 51
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default ......................................... 51
Section 6.02. Acceleration of Maturity; Rescission and Annulment ........ 53
Section 6.03. Waiver of Past Defaults and Events of Default ............. 54
-iii-
<PAGE>
Page
----
ARTICLE 7
[INTENTIONALLY OMITTED]
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures and Agreements Without Consent
of Holders .............................................. 55
Section 8.02. Supplemental Indentures and Agreements with Consent
of Holders .............................................. 55
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Supplemental Indenture
and the Indenture ....................................... 57
Section 9.02. Application of Trust Money ................................ 58
Section 9.03. Termination of the Company's Obligation ................... 58
Section 9.04. Application of Trust Money ................................ 59
Section 9.05. Repayment to Company ...................................... 59
Section 9.06. Reinstatement ............................................. 60
ARTICLE 10
GUARANTEES
Section 10.01. Guarantors' Guarantee ..................................... 60
Section 10.02. Continuing Guarantee; No Right of Set-Off; Independent
Obligation .............................................. 60
Section 10.03. Guarantee Absolute ........................................ 61
Section 10.04. Right to Demand Full Performance .......................... 63
Section 10.05. Waivers ................................................... 63
Section 10.06. The Guarantors Remain Obligated in Event the Company
Is No Longer Obligated to Discharge Indenture
Obligations ............................................. 63
Section 10.07. Fraudulent Conveyance; Subrogation ........................ 64
Section 10.08. Guarantee Is Additional to Other Security ................. 64
Section 10.09. No Recourse Against Others ................................ 64
Section 10.10. No Bar to Further Actions ................................. 64
Section 10.11. Failure To Exercise Rights Shall Not Operate as a Waiver;
No Suspension of Remedies ............................... 64
Section 10.12. Trustee's Duties; Notice to Trustee ....................... 65
Section 10.13. Successors and Assigns .................................... 65
Section 10.14. Release of Guarantee ...................................... 65
Section 10.15. Execution of Guarantee .................................... 65
-iv-
<PAGE>
Page
----
ARTICLE 11
MISCELLANEOUS
Section 11.01. Ratification of the Indenture ............................. 66
Section 11.02. Notices ................................................... 66
Section 11.03. Governing Law ............................................. 67
Section 11.04. Counterparts .............................................. 67
Section 11.05. Table of Contents, Headings, etc. ......................... 67
Section 11.06. Separability .............................................. 67
Section 11.07. Benefits of Supplemental Indenture and the Indenture ...... 67
Signatures ............................................................... S-1
EXHIBITS
Exhibit A. Form of Global Notes ....................................... A-1
Exhibit B. Form of Definitive Notes ................................... B-1
Exhibit C. Form of Guarantees ......................................... C-1
Exhibit D Form of Transfer Certificate ............................... D-1
Exhibit E. Form of Exchange Certificate ............................... E-1
Exhibit F. Form of Intercompany Note .................................. F-1
-v-
<PAGE>
SUPPLEMENTAL INDENTURE NO. 4, dated as of May 15, 2000 (the
"Supplemental Indenture"), between CANANDAIGUA BRANDS, INC., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Company"), the guarantors named herein and from time to time parties
hereto, and HARRIS TRUST AND SAVINGS BANK, an Illinois banking corporation, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore delivered to the Trustee an
Indenture, dated as of February 25, 1999 (the "Indenture"), as supplemented or
amended, a form of which has been filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, as an exhibit to the
Company's Registration Statement on Form S-3 (Registration No. 333-91587),
providing for the issuance from time to time of Debt Securities of the Company.
WHEREAS, Sections 2.1 and 2.2 of the Indenture provide for various
matters with respect to any series of Debt Securities issued under the Indenture
to be established in an indenture supplemental to the Indenture.
WHEREAS, Section 12.1 of the Indenture provides for the Company and
the Trustee to enter into an indenture supplemental to the Indenture to
establish the form or terms of Debt Securities of any series as provided by
Sections 2.1 and 2.2 of the Indenture.
WHEREAS, all the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
series of Debt Securities provided for herein by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Notes, as follows:
ARTICLE 1
RELATION TO INDENTURE; DEFINITIONS
Section 1.01. Relation to Indenture.
This Supplemental Indenture constitutes an integral part of the
Indenture.
Section 1.02. Definitions.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Indenture;
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture; and
<PAGE>
(3) To the extent terms defined herein differ from the Indenture the
terms defined herein will govern.
"144A Global Note(s)" means one or more Note(s) in the form set
forth in Exhibit A, bearing the Private Placement Legend and sold in reliance on
Rule 144A.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing
at the time such Person becomes a Restricted Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary or such acquisition. Acquired
Indebtedness shall be deemed to be incurred on the date of the related
acquisition of assets from any Person or the date the acquired Person becomes a
Restricted Subsidiary.
"Additional Amounts" has the meaning set forth in Section 4.09.
"Additional Interest" any amounts required to be paid by the Company
to Holders of Restricted Notes pursuant to a valid registration rights agreement
among the Company, the Guarantors and the initial purchasers of such Restricted
Notes.
"Additional Notes" means, subject to the Company's compliance with
Section 4.10, 8 1/2% Series C Senior Notes Due 2009, issued from time to time
after May 15, 2000 under the terms of this Supplemental Indenture and the
Indenture, including, without limitation any Notes issued in an exchange offer
registered in the Securities Act for the Series B Senior Notes (other than Notes
issued pursuant to Sections 2.07, 2.08, 2.11, 3.06 and 4.16 of this Supplemental
Indenture or Section 12.5 of the Indenture and other than Notes issued pursuant
to an exchange offer for Notes outstanding under this Supplemental Indenture and
the Indenture).
"Adjusted Gilt Rate" means, with respect to any redemption date, the
rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Gilt Issue, assuming a price for the Comparable Gilt Issue (expressed
as a percentage of its principal amount) equal to the Comparable Gilt Price for
such redemption date.
"Affiliate" means, with respect to any specified Person: (i) any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person; (ii) any other Person
that owns, directly or indirectly, 5% or more of such Person's Capital Stock or
any officer or director of any such Person or other Person or, with respect to
any natural Person, any person having a relationship with such Person by blood,
marriage or adoption not more remote than first cousin; or (iii) any other
Person 10% or more of the voting Capital Stock of which is beneficially owned or
held directly or indirectly by such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer,
exchange or other transaction involving a Global Note or beneficial interest
therein, the rules and provisions of DTC and the "Operating Procedures of the
Euroclear System," and "Terms and Conditions Governing Use of Euroclear,"
"General Terms and Conditions of Clearstream" and "Customer Handbook" of
Clearstream, in each case, to the extent applicable to such transaction and as
in effect at the time of such transaction.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease
or other disposition (including, without limitation, by way of merger,
consolidation or Sale and Leaseback Transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions of: (i) any
Capital Stock of any Re-
-2-
<PAGE>
stricted Subsidiary; (ii) all or substantially all of the properties and assets
of any division or line of business of the Company or its Restricted
Subsidiaries; or (iii) any other properties or assets of the Company or any
Restricted Subsidiary, other than in the ordinary course of business. For the
purposes of this definition, the term "Asset Sale" shall not include (x) any
transfer of properties and assets (A) that is governed by Section 5.01(a) or (B)
that is of the Company to any Restricted Subsidiary, or of any Subsidiary to the
Company or any Subsidiary in accordance with the terms of this Supplemental
Indenture and the Indenture or (y) transfers of properties and assets in any
given fiscal year with an aggregate Fair Market Value of less than $3,000,000.
"Asset Swap" means the execution of a definitive agreement, subject
only to customary closing conditions that the Company in good faith believes
will be satisfied, for a substantially concurrent purchase and sale, or
exchange, of Productive Assets between the Company or any of its Restricted
Subsidiaries and another Person or group of affiliated Persons; it being
understood that an Asset Swap may include a cash equalization payment made in
connection therewith provided that such cash payment, if received by the Company
or its Subsidiaries, shall be deemed to be proceeds received from an Asset Sale
and applied in accordance with Section 4.14.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such principal
payment by (ii) the sum of all such principal payments.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States Federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Book-Entry Interest" means an indirect beneficial interest in a
Global Note shown on, and transferred only through, records maintained in
book-entry form by DTC, or Euroclear and Clearstream.
"Borrowing Base" means the sum of (i) 85% of accounts receivable of
the Company and its Subsidiaries and (ii) 50% of the net book value of the
inventory of the Company and its Subsidiaries, in each case, as determined on a
consolidated basis in accordance with GAAP.
"Business Day" means a day that, in the City of New York and London,
is not a day upon which banking institutions are authorized or required by law,
or by executive order issued by a governmental authority or agency regulating
such banking institutions, to close.
"Capital Lease Obligation" means any obligations of the Company and
its Restricted Subsidiaries on a Consolidated basis under any capital lease of
real or personal property which, in accordance with GAAP, has been recorded as a
capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock.
"Change of Control" means the occurrence of any of the following
events: (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have beneficial ownership of all shares
that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 30% of the voting power of the total outstanding Voting Stock of the
Company voting as one class, provided that the Permitted Holders "beneficially
own" (as so defined) a percentage of Voting Stock having a lesser percentage of
the voting power than such other Person and do not have the right or ability by
voting power, con-
-3-
<PAGE>
tract or otherwise to elect or designate for election a majority of the Board of
Directors of the Company; (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election to such
Board or whose nomination for election by the shareholders of the Company was
approved by a vote of 66 2/3% of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of such Board of Directors then in office; (iii) the Company
consolidates with or merges with or into any Person or conveys, transfers or
leases all or substantially all of its assets to any Person, or any corporation
consolidates with or merges into or with the Company, in any such event pursuant
to a transaction in which the outstanding Voting Stock of the Company is changed
into or exchanged for cash, securities or other property, other than any such
transaction where the outstanding Voting Stock of the Company is not changed or
exchanged at all (except to the extent necessary to reflect a change in the
jurisdiction of incorporation of the Company) or where (A) the outstanding
Voting Stock of the Company is changed into or exchanged for (x) Voting Stock of
the surviving corporation which is not Redeemable Capital Stock or (y) cash,
securities and other property (other than Capital Stock of the surviving
corporation) in an amount which could be paid by the Company as a Restricted
Payment in accordance with Section 4.11 (and such amount shall be treated as a
Restricted Payment subject to the provisions set forth in Section 4.11) and (B)
no "person" or "group" other than Permitted Holders owns immediately after such
transaction, directly or indirectly, more than the greater of (1) 30% of the
voting power of the total outstanding Voting Stock of the surviving corporation
voting as one class and (2) the percentage of such voting power of the surviving
corporation held, directly or indirectly, by Permitted Holders immediately after
such transaction; or (iv) the Company is liquidated or dissolved or adopts a
plan of liquidation or dissolution other than in a transaction which complies
with the provisions described in Section 5.01.
"Change of Control Offer" shall have the meaning set forth in
Section 4.16(a).
"Change of Control Purchase Date" shall have the meaning set forth
in Section 4.16(a).
"Change of Control Purchase Price" shall have the meaning set forth
in Section 4.16(a).
"Clearstream" means Clearstream Banking, formerly Cedelbank, societe
anonyme.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Supplemental Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Depositary" shall have the meaning set forth in Section
2.01.
"Company" means Canandaigua Brands, Inc., a corporation incorporated
under the laws of Delaware, until a successor Person shall have become such
pursuant to the applicable provisions of this Supplemental Indenture and the
Indenture, and thereafter "Company" shall mean such successor Person.
"Comparable Gilt Issue" means a United Kingdom Government Obligation
selected by the Quotation Agent as having a maturity comparable to the remaining
term of the Notes to be redeemed, that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes.
"Comparable Gilt Price" means, with respect to any redemption date,
(i) the average of the Reference Gilt Dealer Quotations for such redemption
date, after excluding the highest and lowest such Refer-
-4-
<PAGE>
ence Gilt Dealer Quotations, or (ii) if the Trustee obtains fewer than three
such Reference Gilt Dealer Quotations, the average of all such Quotations.
"Consolidated Fixed Charge Coverage Ratio" of the Company means, for
any period, the ratio of (a) the sum of Consolidated Net Income (Loss),
Consolidated Interest Expense, Consolidated Income Tax Expense and Consolidated
Non-cash Charges deducted in computing Consolidated Net Income (Loss) in each
case, for such period, of the Company and its Restricted Subsidiaries on a
Consolidated basis, all determined in accordance with GAAP to (b) the sum of
Consolidated Interest Expense for such period and cash and non-cash dividends
paid on any Preferred Stock of the Company and its Restricted Subsidiaries
during such period; provided that (i) in making such computation, the
Consolidated Interest Expense attributable to interest on any Indebtedness
computed on a pro forma basis and (A) bearing a floating interest rate, shall be
computed as if the rate in effect on the date of computation had been the
applicable rate for the entire period and (B) which was not outstanding during
the period for which the computation is being made but which bears, at the
option of the Company, a fixed or floating rate of interest, shall be computed
by applying at the option of the Company, either the fixed or floating rate and
(ii) in making such computation, the Consolidated Interest Expense of the
Company attributable to interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable period.
"Consolidated Income Tax Expense" means for any period, as applied
to the Company, the provision for federal, state, local and foreign income taxes
of the Company and its Restricted Subsidiaries for such period as determined in
accordance with GAAP on a Consolidated basis.
"Consolidated Interest Expense" of the Company means, without
duplication, for any period, the sum of (a) the interest expense of the Company
and its Restricted Subsidiaries for such period, on a Consolidated basis,
including, without limitation, (i) amortization of debt discount, (ii) the net
cost under interest rate contracts (including amortization of discounts), (iii)
the interest portion of any deferred payment obligation and (iv) accrued
interest, plus (b) (i) the interest component of the Capital Lease Obligations
paid, accrued and/or scheduled to be paid or accrued by the Company and its
Restricted Subsidiaries during such period and (ii) all capitalized interest of
the Company and its Restricted Subsidiaries, in each case as determined in
accordance with GAAP on a Consolidated basis. Whenever pro forma effect is to be
given to an acquisition or disposition of assets for the purpose of calculating
the Consolidated Fixed Charge Coverage Ratio, the amount of Consolidated
Interest Expense associated with any Indebtedness Incurred in connection with
such acquisition or disposition of assets shall be calculated on a pro forma
basis in accordance with Regulation S-X under the Securities Act, as in effect
on the date of such calculation.
"Consolidated Net Income (Loss)" of the Company means, for any
period, the Consolidated net income (or loss) of the Company and its Restricted
Subsidiaries for such period as determined in accordance with GAAP on a
Consolidated basis, adjusted, to the extent included in calculating such net
income (loss), by excluding, without duplication: (i) all extraordinary gains or
losses (less all fees and expenses relating thereto); (ii) the portion of net
income (or loss) of the Company and its Restricted Subsidiaries allocable to
minority interests in unconsolidated Persons to the extent that cash dividends
or distributions have not actually been received by the Company or one of its
Restricted Subsidiaries; (iii) net income (or loss) of any Person combined with
the Company or any of its Restricted Subsidiaries on a "pooling of interests"
basis attributable to any period prior to the date of combination; (iv) any gain
or loss, net of taxes, realized upon the termination of any employee pension
benefit plan; (v) net gains (but not losses) (less all fees and expenses
relating thereto) in respect of dispositions of assets other than in the
ordinary course of business; or (vi) the net income of any Restricted Subsidiary
to the extent that the declaration of dividends or similar distributions by that
Restricted Subsidiary of that income is not at the time permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulations
applicable to that Restricted Subsidiary or its stockholders. Whenever pro forma
effect is to be given to an acquisition or disposition of assets for the purpose
of calculating the Consolidated Fixed Charge Coverage Ratio, the amount of
income or
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earnings related to such assets shall be calculated on a pro forma basis in
accordance with Regulation S-X under the Securities Act, as in effect on the
date of such calculation.
"Consolidated Net Tangible Assets" means with respect to any Person,
as of any date of determination, the book value of such Person's total assets,
less goodwill, deferred financing costs and other intangibles and less
accumulated amortization, shown on the most recent balance sheet of such Person,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" of any Person means the Consolidated
stockholders' equity (excluding Redeemable Capital Stock) of such Person and its
subsidiaries, as determined in accordance with GAAP on a Consolidated basis.
"Consolidated Non-cash Charges" of the Company means, for any
period, the aggregate depreciation, amortization and other non-cash charges of
the Company and its Consolidated Restricted Subsidiaries for such period, as
determined in accordance with GAAP on a Consolidated basis (excluding any
non-cash charge which requires an accrual or reserve for cash charges for any
future period).
"Consolidation" means, with respect to any Person, the consolidation
of the accounts of such Person and each of its subsidiaries if and to the extent
the accounts of such Person and each of its subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP. The term
"Consolidated" shall have a similar meaning.
"Credit Agreement" means the Credit Agreement, dated as of October
6, 1999, between the Company, the Subsidiaries of the Company identified on the
signature pages thereof, the lenders named therein and The Chase Manhattan Bank,
as administrative agent, including any deferrals, renewals, extensions,
replacements, refinancings or refundings thereof or amendments, modifications or
supplements thereto and any agreements therefor (including any of the foregoing
that increase the principal amount of Indebtedness or the commitments to lend
thereunder and have been made in compliance with the provisions of Section 4.10;
provided that, for purposes of the definition of "Permitted Indebtedness," no
such increase may result in the principal amount of Indebtedness of the Company
under the Credit Agreement exceeding the amount permitted by subparagraph (b)(i)
of Section 4.10), whether by or with the same or any other lender, creditor,
group of lenders or group of creditors, and including related notes, guarantees
and note agreements and other instruments and agreements executed in connection
therewith.
"Custodian" shall have the meaning set forth in Section 2.01.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Definitive Notes" means the Restricted Definitive Notes and the
Unrestricted Definitive Notes.
"Depositary" means any of the DTC, Euroclear or Clearstream.
"Designation" has the meaning set forth in Section 4.19.
"Designation Amounts" has the meaning set forth in Section 4.19.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary of
the Company organized under the laws of the United States or any political
subdivision thereof or the operations of which are located substantially inside
the United States.
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"DTC" means the Depository Trust Company.
"DTC Global note" means a Global Note held in the name of Cede & Co.
on behalf of DTC.
"Euroclear" means Morgan Guaranty Trust Company of New York
(Brussels office) as operator of the Euroclear system.
"Excess Proceeds" has the meaning set forth in Section 4.14(b).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset or property,
the sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"Foreign Restricted Subsidiary" means a Restricted Subsidiary of the
Company not organized under the laws of the United States or any political
subdivision thereof and the operations of which are located substantially
outside of the United States.
"GAAP" or "Generally Accepted Accounting Principles" means generally
accepted accounting principles in the United States, consistently applied, which
are in effect on the date of this Supplemental Indenture.
"Global Notes" or "Global Securities" means the 144A Global Note(s),
the Regulation S Global Note(s) and any Unrestricted Global Notes.
"Guarantee" means the guarantee by each Guarantor of the Company's
Indenture Obligations pursuant to a guarantee given in accordance with this
Supplemental Indenture, including the Guarantees by the Guarantors and any
Guarantee delivered pursuant to the provisions of Section 4.15.
"Guaranteed Debt" of any Person means, without duplication, all
Indebtedness of any other Person referred to in the definition of "Indebtedness"
contained in this Section 1.01 guaranteed directly or indirectly in any manner
by such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (ii) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss, (iii) to
supply funds to, or in any other manner invest in, the debtor (including any
agreement to pay for property or services without requiring that such property
be received or such services be rendered), (iv) to maintain working capital or
equity capital of the debtor, or otherwise to maintain the net worth, solvency
or other financial condition of the debtor or (v) otherwise to assure a creditor
against loss; provided that the term "guarantee" shall not include endorsements
for collection or deposit, in either case in the ordinary course of business.
"Guarantor" means the Subsidiaries listed on the signature pages of
this Supplemental Indenture as guarantors and each other Subsidiary required to
become a Guarantor after the Issue Date, pursuant to Section 4.15.
"Hedging Agreement" means, with respect to any Person, all interest
rate swap or similar agreements or foreign currency or commodity hedge, exchange
or similar agreements of such Person.
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"Hedging Obligations" means, with respect to any Person, the
Obligations of such Person under Hedging Agreements.
"Holders" mean the registered holders of the Notes.
"Incur" means, with respect to any Indebtedness or other obligation
of any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred" and "Incurring" shall have meanings
correlative to the foregoing). Indebtedness of any Acquired Person or any of its
Subsidiaries existing at the time such Acquired Person becomes a Subsidiary (or
is merged into or consolidated with the Company or any Subsidiary), whether or
not such Indebtedness was Incurred in connection with, as a result of, or in
contemplation of, such Acquired Person becoming a Subsidiary (or being merged
into or consolidated with the Company or any Subsidiary), shall be deemed
Incurred at the time any such Acquired Person becomes a Subsidiary or merges
into or consolidates with the Company or any Subsidiary.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any trade payables
and other accrued current liabilities arising in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit issued under
letter of credit facilities, acceptance facilities or other similar facilities
and in connection with any agreement to purchase, redeem, exchange, convert or
otherwise acquire for value any Capital Stock of such Person, or any warrants,
rights or options to acquire such Capital Stock, now or hereafter outstanding,
(ii) all obligations of such Person evidenced by bonds, notes, debentures or
other similar instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property), but excluding trade payables arising in the ordinary course
of business, (iv) all Hedging Obligations of such Person, (v) all Capital Lease
Obligations of such Person, (vi) all Indebtedness referred to in clauses (i)
through (v) above of other Persons and all dividends of other Persons, the
payment of which is secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien, upon or
with respect to property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness, (vii) all Guaranteed Debt of such
Person, (viii) all Redeemable Capital Stock valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends, and (ix) any amendment, supplement, modification, deferral, renewal,
extension, refunding or refinancing of any liability of the types referred to in
clauses (i) through (viii) above. For purposes hereof, the "maximum fixed
repurchase price" of any Redeemable Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on
any date on which Indebtedness shall be required to be determined pursuant to
this Supplemental Indenture, and if such price is based upon, or measured by,
the Fair Market Value of such Redeemable Capital Stock, such Fair Market Value
to be determined in good faith by the board of directors of the issuer of such
Redeemable Capital Stock.
"Indenture Obligations" means the obligations of the Company and any
other obligor under this Supplemental Indenture and the Indenture or under the
Notes, including any Guarantor, to pay principal of, premium, if any, and
interest when due and payable, and all other amounts due or to become due under
or in connection with this Supplemental Indenture and the Indenture, the Notes
and the performance of all other obligations to the Trustee and the Holders
under this Supplemental Indenture and the Indenture and the Notes, according to
the terms hereof or thereof.
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"Insolvency or Liquidation Proceeding" means, with respect to any
Person, any liquidation, dissolution or winding up of such Person, or any
bankruptcy, reorganization, insolvency, receivership or similar proceeding with
respect to such Person, whether voluntary or involuntary.
"Interest Payment Date" means each semiannual interest payment date
on May 15 and November 15 of each year, commencing on May 15, 2000.
"Investments" means, with respect to any Person, directly or
indirectly, any advance, loan (including guarantees), or other extension of
credit or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase, acquisition or ownership by such Person of any
Capital Stock, bonds, notes, debentures or other securities issued or owned by,
any other Person and all other items that would be classified as investments on
a balance sheet prepared in accordance with GAAP.
"Investment Grade" means a rating of (i) BBB- or higher by S&P and
Ba1 or higher by Moody's or (ii) Baa3 or higher by Moody's and BB+ or higher by
S&P.
"Issue Date" means May 15, 2000.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
"Maturity" when used with respect to any Note means the date on
which the principal of such Note becomes due and payable as therein provided or
as provided in this Supplemental Indenture and the Indenture, whether at Stated
Maturity, the Offer Date or the redemption date and whether by declaration of
acceleration, Offer in respect of Excess Proceeds, Change of Control, call for
redemption or otherwise.
"Moody's" means Moody's Investor Services, Inc. or any successor
thereto.
"Net Cash Proceeds" means (a) with respect to any Asset Sale by any
Person, the proceeds thereof in the form of cash or Temporary Cash Investments
including payments in respect of deferred payment obligations when received in
the form of, or stock or other assets when disposed for, cash or Temporary Cash
Investments (except to the extent that such obligations are financed or sold
with recourse to the Company or any Restricted Subsidiary) net of (i) brokerage
commissions and other actual fees and expenses (including fees and expenses of
counsel and investment bankers) related to such Asset Sale, (ii) provisions for
all taxes payable as a result of such Asset Sale, (iii) payments made to retire
Indebtedness where payment of such Indebtedness is secured by the assets or
properties the subject of such Asset Sale, (iv) amounts required to be paid to
any Person (other than the Company or any Restricted Subsidiary) owning a
beneficial interest in the assets subject to the Asset Sale and (v) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as reflected in an Officers'
Certificate delivered to the Trustee and (b) with respect to any issuance or
sale of Capital Stock or options, warrants or rights to purchase Capital Stock,
or debt securities or Capital Stock that have been converted into or exchanged
for Capital Stock, as referred to in Section 4.11, the proceeds of such issuance
or sale in the form of cash or Temporary Cash Investments, including payments in
respect of deferred payment obligations when received in the form of, or stock
or other assets when disposed for, cash or Temporary Cash Investments (except to
the extent that such obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary), net of attorneys' fees, accountants' fees
and brokerage, consultation, underwriting and other fees and ex-
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penses actually incurred in connection with such issuance or sale and net of
taxes paid or payable as a result thereof.
"Note Amount" has the meaning specified in Section 4.14(c) hereof.
"Notes" means (pound)80.0 million aggregate principal amount of the
Company's 8 1/2% Series C Senior Notes Due 2009, issued pursuant to this
Supplemental Indenture on the Issue Date and any Additional Notes, treated as a
single class of securities, as amended or supplemented from time to time in
accordance with the terms of this Supplemental Indenture and the Indenture.
"Obligations" means any principal, interest (including, without
limitation, Post-Petition Interest), penalties, fees, indemnifications,
reimbursement obligations, damages and other liabilities payable under the
documentation governing any Indebtedness.
"Offer" has the meaning set forth in Section 4.14(c) hereof.
"Offer Date" has the meaning set forth in Section 4.14(c) hereof.
"Offered Price" has the meaning set forth in Section 4.14(c) hereof.
"Officer" means, with respect to any Person, the chairman of the
board, president or any vice president (regardless of vice presidential
designation), chief financial officer, treasurer, any assistant treasurer,
secretary or assistant secretary of such Person.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, President or any Vice President (regardless of Vice Presidential
designation), and by its Chief Financial Officer, Treasurer, any Assistant
Treasurer, Secretary or Assistant Secretary of the Company, in their capacities
as such officers of the Company and delivered to the Trustee. Each such
certificate shall include the statements provided in Section 11.05, if and to
the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel (who may be an employee of the Company) acceptable in form and substance
to the Trustee and delivered to the Trustee. Such opinion shall include the
statements provided for in Section 11.05, if and to the extent required by the
provisions thereof.
"Other Indebtedness" has the meaning set forth in Section 4.15
hereof.
"Pari Passu Indebtedness" means any Indebtedness of the Company or a
Guarantor that is pari passu in right of payment with the Notes or a Guarantee,
as the case may be.
"Pari Passu Offer" has the meaning set forth in Section 4.14(c)
hereof.
"Participant" means, with respect to DTC, Euroclear or Clearstream,
Persons who have accounts with DTC, Euroclear or Clearstream, respectively (and
with respect to DTC, shall include Euroclear and Clearstream).
"Permitted Holders" means as of the date of determination (i)
Marilyn Sands, Richard Sands and Robert Sands; (ii) family members or the
relatives of the Persons described in clause (i) or the Mac and Sally Sands
Foundation, Incorporated; (iii) any trusts created for the benefit of the
Persons described in clauses (i), (ii) or (v) or for the benefit of Andrew Stern
or any trust for the benefit of any such trust; (iv) any partnerships that are
controlled by (and a majority of the partnership interests in which are owned
by) any of the Persons described in clauses (i), (ii), (iii) or (v) or by any
partnership that satisfies the conditions of this clause (iv); or (v) in the
case of Marvin Sands and in the event of the incompetence or death of any of the
per-
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sons described in clauses (i) and (ii), such Person's estate, executor,
administrator, committee or other personal representative or beneficiaries, in
each case who at any particular date shall beneficially own or have the right to
acquire, directly or indirectly, Capital Stock of the Company.
"Permitted Indebtedness" has the meaning set forth in Section 4.10.
"Permitted Investment" means (i) Investments in any Wholly Owned
Restricted Subsidiary or any Person which, as a result of such Investment,
becomes a Wholly Owned Restricted Subsidiary; (ii) Indebtedness of the Company
or a Restricted Subsidiary described under clauses (iv) and (v) of the
definition of "Permitted Indebtedness"; (iii) Temporary Cash Investments; (iv)
Investments acquired by the Company or any Restricted Subsidiary in connection
with an Asset Sale permitted under Section 4.14 to the extent such Investments
are non-cash proceeds as permitted under such covenant; (v) guarantees of
Indebtedness otherwise permitted by this Supplemental Indenture and the
Indenture; (vi) Investments in existence on the date of this Supplemental
Indenture; and (vii) Investments in joint ventures in an aggregate amount not to
exceed at any one time the greater of (x) $50.0 million and (y) 5.0% of
Consolidated Net Tangible Assets.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivisions thereof.
"Post-Petition Interest" means, with respect to any Indebtedness of
any Person, all interest accrued or accruing on such Indebtedness after the
commencement of any Insolvency or Liquidation Proceeding against such Person in
accordance with and at the contract rate (including, without limitation, any
rate applicable upon default) specified in the agreement or instrument creating,
evidencing or governing such Indebtedness, whether or not, pursuant to
applicable law or otherwise, the claim for such interest is allowed as a claim
in such Insolvency or Liquidation Proceeding.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred stock, whether now outstanding or issued after the Issue
Date, and including, without limitation, all classes and series of preferred or
preference stock.
"Principal Paying Agent" has the meaning provided in Section 2.03.
"Private Placement Legend" has the meaning provided in Section 2.16.
"Productive Assets" means assets of a kind used or usable by the
Company and its Restricted Subsidiaries in their respective businesses
(including, without limitation, contracts, leases, licenses or other agreements
of value to the Company or any of its Restricted Subsidiaries), provided,
however, that productive assets to be acquired by the Company or any Restricted
Subsidiary shall be, in the good faith judgment of management of the Company or
such Restricted Subsidiary, assets which are reasonably related, ancillary or
complementary to the business of the Company and its Restricted Subsidiaries as
conducted on the Issue Date.
"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"Qualified Institutional Buyer" shall have the meaning specified in
Rule 144A promulgated under the Securities Act.
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"Quotation Agent" means the Reference Gilt Dealer appointed by the
Company.
"Redeemable Capital Stock" means any Capital Stock that, either by
its terms or by the terms of any security into which it is convertible or
exchangeable or otherwise, is or upon the happening of an event (other than as a
result of a change of control provision substantially similar to that contained
in Section 4.16) or passage of time would be, required to be redeemed prior to
any Stated Maturity of the principal of the Notes or is redeemable at the option
of the holder thereof at any time prior to any such Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to any
such Stated Maturity at the option of the holder thereof.
"Redemption Date" when used with respect to any Note to be redeemed
means the date fixed for such redemption pursuant to the terms of this
Supplemental Indenture and the Indenture.
"Redemption Price" means, with respect to any Note to be redeemed,
the price fixed for such redemption pursuant to the terms of this Supplemental
Indenture and the Indenture.
"Reference Gilt Dealer" means each of (x) Barclays Bank PLC and its
respective successors; provided, however, that if the foregoing shall cease to
be a primary United Kingdom Government Obligations dealer in London (a "Primary
U.K. Government Obligations Dealer"), the Company shall substitute therefor
another Primary U.K. Government Obligations Dealer; and (y) any other Primary
U.K. Government Obligations Dealer selected by the Company.
"Reference Gilt Dealer Quotations" means, with respect to each
Reference Gilt Dealer and any redemption date, the average, as determined by the
Company, of the bid and asked prices for the Comparable Gilt Issue (expressed in
each case as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Gilt Dealer at 11:00 a.m., London time, on the third
business day preceding such redemption date.
"Registrar" has the meaning set forth in Section 2.03.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note(s)" means one or more Notes in the form
set forth in Exhibit A, bearing the Private Placement Legend and sold in
reliance on Regulation S.
"Responsible Officer" means, with respect to the Trustee, any
officer of the Trustee assigned by the Trustee to administer its corporate trust
matters.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend issued in registered form without coupons in a
principal amount of (pound)1,000 or integral multiples thereof.
"Restricted Definitive Notes" means the Restricted Definitive Notes
and any other Notes that require the Private Placement Legend (or a
substantially similar legend) as are in definitive form.
"Restricted Global Notes" means the 144A Global Note(s), the
Regulation S Global Note(s) and any other Notes that require the Private
Placement Legend (or a substantially similar legend) held in global form.
"Restricted Notes" means the Restricted Global Note(s) and the
Restricted Definitive Notes.
"Restricted Payment" has the meaning set forth in Section 4.11.
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"Restricted Subsidiary" means any Subsidiary of the Company that has
not been designated by the Board of Directors of the Company, by a resolution of
the Board of Directors of the Company delivered to the Trustee, as an
Unrestricted Subsidiary pursuant to Section 4.19. Any such designation may be
revoked by a resolution of the Board of Directors of the Company delivered to
the Trustee, subject to the provisions of such covenant.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
promulgated under the Securities Act; provided that the Trustee shall be
entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether any Note is a Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any transaction or series of
related transactions pursuant to which the Company or a Restricted Subsidiary
sells or transfers any property or asset in connection with the leasing, or the
resale against installment payments, of such property or asset to the seller or
transferor.
"Securities Act" means the Securities Act of 1933, as amended.
"Series B Senior Notes" means such of the Company's 8 1/2 Series B
Senior Notes Due 2009, issued pursuant to an indenture, dated as of November 17,
1999, among the Company, the Guarantors and the Trustee, that are outstanding on
the Issue Date.
"S&P" means Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc. or any successor thereto.
"Stated Maturity" when used with respect to any Indebtedness or any
installment of interest thereon, means the dates specified in such Indebtedness
as the fixed date on which the principal of such Indebtedness or such
installment of interest is due and payable.
"Sterling" or "(pound)" means the lawful currency of the United
Kingdom that is legal tender for the payment of public and private debts, as in
effect from time to time.
"Subordinated Indebtedness" means Indebtedness of the Company or a
Guarantor subordinated in right of payment to the Notes or a Guarantee, as the
case may be.
"Subsidiary" means any Person a majority of the equity ownership or
the Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"Temporary Cash Investments" means: (i) any evidence of Indebtedness
of a Person, other than the Company or its Subsidiaries, maturing not more than
one year after the date of acquisition, issued by the United States of America
or the United Kingdom, or an instrumentality or agency thereof and guaranteed
fully as to principal, premium, if any, and interest by the United States of
America or the United Kingdom, (ii) any certificate of deposit, maturing not
more than one year after the date of acquisition, issued by, or time deposit of,
a commercial banking institution that is a member of the Federal Reserve System
and that has combined capital and surplus and undivided profits of not less than
$500,000,000, whose debt has a rating, at the time as of which any investment
therein is made, of "P-1" (or higher) according to Moody's or any successor
rating agency or "A-1" (or higher) according to S&P or any successor rating
agency, (iii) commercial paper, maturing not more than one year after the date
of acquisition, issued by a corporation (other than an Affiliate or Subsidiary
of the Company) organized and existing under the laws of the United States of
America with a rating, at the time as of which any investment therein is made,
of "P-1" (or higher) according to Moody's or "A-1" (or
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higher) according to S&P and (iv) any money market deposit accounts issued or
offered by a domestic commercial bank having capital and surplus in excess of
$500,000,000.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended.
"United Kingdom Government Obligations" means direct non-callable
obligations of the United Kingdom for the payment of which the full faith and
credit of the United Kingdom is pledged.
"Unrestricted Definitive Note" means one or more Notes in the form
set forth in Exhibit B that do not and are not required to bear the Private
Placement Legend.
"Unrestricted Global Note" means one or more Notes in the form set
forth in Exhibit A that do not and are not required to bear the Private
Placement Legend.
"Unrestricted Notes" means the Unrestricted Global Notes and the
Unrestricted Definitive Notes.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated as such pursuant to Section 4.19. Any such designation may be revoked
by a resolution of the Board of Directors of the Company delivered to the
Trustee, subject to the provisions of Section 4.19.
"Voting Stock" means stock of the class or classes pursuant to which
the holders thereof have the general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or trustees of
a corporation (irrespective of whether or not at the time stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
all the Capital Stock of which (other than directors' qualifying shares and up
to 5% of the issued and outstanding Capital Stock which may be owned by
executive officers of such Subsidiary) is owned by the Company or another Wholly
Owned Restricted Subsidiary.
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA 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 Guarantees.
"indenture securityholder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Company or any other
obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings therein assigned to them.
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Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) words used herein implying any gender shall apply to every
gender.
ARTICLE 2
THE NOTES
The following provisions of this Article Two shall apply to the
Notes (but not with respect to any other series of Debt Securities) and shall
replace in its entirety the provisions set forth in Article II of the Indenture
(but not with respect to any other series of Debt Securities).
Section 2.01. Form and Dating.
(a) Global Notes. Notes issued and sold pursuant to an effective
registration statement under the Securities Act, issued pursuant to an effective
exchange offer registration statement under the Securities Act for the Company's
outstanding Series B Senior Notes or issued in accordance with Section
2.07(b)(iii) and 2.07(e), shall be issued in the form of Unrestricted Global
Notes and deposited with Citibank N.A., London, as custodian (in such capacity,
the "Custodian") on behalf of DTC or with Citibank N.A., London, as common
depositary (in such capacity, the "Common Depositary") on behalf of Euroclear
and Clearstream, as the case may be. Notes offered and sold to Qualified
Institutional Buyers in reliance on Rule 144A shall be issued initially in the
form of a 144A Global Note, which shall be duly executed by the Company and
authenticated by the Trustee as hereinafter provided and deposited with the
Custodian on behalf of DTC. Notes offered and sold in reliance on Regulation S
shall be issued initially in the form of a Regulation S Global Note, which shall
be duly executed by the Company and authenticated by the Trustee as hereinafter
provided and deposited with the Common Depositary on behalf of Euroclear and
Clearstream.
Each Global Note shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and shall provide that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges,
transfers of interests therein, redemptions and repurchases in accordance with
the terms of this Supplemental Indenture and the Indenture; provided that, the
maximum principal amount of all Notes shall never exceed (pound)300.0 million
issued and outstanding at any one time except as provided in Section 2.08. Any
endorsement of the Schedule to a Global Note to reflect the amount of any
increase or decrease in the principal amount of outstanding Notes represented
thereby shall be made by the Registrar in accordance with Sections 2.07, 3.07,
3.08, 4.14 and 4.16 hereof.
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Except as set forth in Section 2.07(a) hereof, the Global Notes may
be transferred, in whole and not in part, only to a successor of the relevant
Depositary on whose behalf such note is held.
(b) Definitive Notes. Definitive Notes issued upon transfer of a
Book-Entry Interest or a Definitive Note, or in exchange for a Book-Entry
Interest or a Definitive Note, shall be issued in accordance with this
Supplemental Indenture and the Indenture, duly executed by the Company and
authenticated by the Trustee as hereinafter provided.
(c) Book-Entry Provisions. None of the Depositaries or any of their
respective Participants shall have any rights either under this Supplemental
Indenture or the Indenture or under any Global Note with respect to such Global
Note held on their behalf by the Custodian or the Common Depositary.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any Agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Custodian
or the Common Depositary or impair, as between the Custodian or the Common
Depositary and the Depositaries and their respective Participants, the operation
of customary practices of such Depositary governing the exercise of the rights
of an owner of a beneficial interest in any Global Note.
(d) Note Forms. The provisions of the form of Notes contained in
Exhibits A and B hereto are incorporated herein by reference. The Notes issued
on the Issue Date will be issued in the form of Exhibit A and title thereto will
pass by delivery. Additional Notes may be issued in the form of either Exhibit A
or Exhibit B, as the case may be. Notes will be issued in denominations of
(pound)l,000 and integral multiples thereof. In no event will Definitive Notes
in bearer form be issued.
(e) Dating. Each Note shall be dated the date of its authentication.
Section 2.02. Execution and Authentication.
An Officer shall execute the Notes on behalf of the Company by
manual or facsimile signature. The Company's seal may but need not be impressed,
affixed, imprinted or reproduced on the Notes.
If the Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note or at any time thereafter,
the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. Such
signature shall be conclusive evidence that the Note has been authenticated
under this Supplemental Indenture and the Indenture.
The Trustee shall authenticate Notes on the Issue Date in an
aggregate principal amount not to exceed (pound)80.0 million and thereafter,
from time to time, in an aggregate principal amount not to exceed (pound)300.0
million at any one time outstanding, in each case, upon receipt of an Officers'
Certificate signed by an Officer directing the Trustee to authenticate the Notes
and certifying that all conditions precedent to the issuance of the Notes
contained herein have been complied with.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Supplemental Indenture or the Indenture to authentication
by the Trustee includes authentication by such agent. Such authenticating agent
shall have the same rights as the Trustee in any dealings hereunder with the
Company or with any of the Company's Affiliates.
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Section 2.03. Registrar and Paying Agents.
(a) The Company shall maintain (i) an office or agency in London
where Notes may be presented for registration of transfer or for exchange (the
"Registrar"), (ii) an office or agency in each of London (the "Principal Paying
Agent") and, if and for so long as any Notes are listed on the Luxembourg Stock
Exchange, Luxembourg (the "Luxembourg Paying Agent") where Definitive Notes may
be presented for payment and (iii) an office or agency in the City of New York
where notices and demands to or upon the Company in respect of the Notes and
this Supplemental Indenture and the Indenture may be served.
The Company may change the Principal Paying Agent or the Registrar
or appoint additional Registrars or additional Paying Agents and the terms
"Registrar" and "Paying Agent" shall include any such additional Registrar or
Paying Agent, as applicable. The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Supplemental Indenture and the
agreement shall implement the provisions of this Supplemental Indenture and the
Indenture that relate to such Agent and, to the extent applicable, shall
incorporate the provisions of the TIA. Without limiting the foregoing, each such
agreement appointing a Principal Paying Agent must contain provisions
substantially to the effect of Section 2.07 hereof. The Company shall notify the
Trustee of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent or fails to give the foregoing notice, the
Trustee shall act as such and shall be entitled to appropriate compensation in
accordance with Section 7.07.
The Registrar shall keep a register (the "Register") of any
Definitive Notes and of their transfer and exchange.
The Company hereby initially appoints (i) the corporate trust office
of the Trustee, located at 430 Park Avenue, New York, New York 10022, as agent
for service of notices and demands in connection with the Notes and this
Supplemental Indenture and the Indenture; (ii) the corporate trust office of
Citibank N.A., London, located at P.O. Box 18055, 5 Carmelite Street, London
EC4Y 0PA, as Registrar and Principal Paying Agent; and (iii) the corporate trust
office of Paribas Luxembourg, located at 10-A Boulevard Royal, L-2093
Luxembourg, R.C. Luxembourg N B6754, as the Luxembourg Paying Agent.
(b) (i) For so long as holders of Book-Entry Interests hold such
interests through a DTC Global Note and the rules of DTC require that payments
made through the facilities of DTC be made in U.S. dollars, the Paying Agent
shall, unless otherwise instructed pursuant to paragraph (b)(ii) below, convert
all payments received from the Company in Sterling in respect of any DTC Global
Note into U.S. dollars. The aggregate amount of any such payment to be made in
U.S. dollars in respect of the DTC Global Notes shall be credited to the Paying
Agent's account in Sterling and such amount, less any amount to be paid in as
contemplated in this Section 2.03(b), shall be converted by the Paying Agent
into U.S. dollars (the "Sterling Conversion Amount"). The resulting Sterling
Conversion Amount shall be paid to DTC or its designated assign for payment
through DTC's settlement system to the relevant Participants. All costs of the
Paying Agent of any such conversions and payment shall be born by the Company.
Any such conversion shall be based on Citibank, N.A.'s ("Citibank") in-house
mid-market agency GB(pound)/US$ rate of exchange prevailing as at 11:00 a.m. New
York City time on the day which is two business days prior to the relevant
payment date. If such exchange rate bid quotation is not available from
Citibank, the Paying Agent shall endeavor to obtain a bid quotation from a
leading foreign exchange bank in New York City selected by the Paying Agent for
such purpose. If no bid quotation from a leading foreign exchange bank is
available, such payments will be made in Sterling to the account or accounts
specified by or on behalf of DTC to the Paying Agent.
(ii) Notwithstanding the foregoing, the Paying Agent shall not
convert amounts received in Sterling into U.S. dollars and shall make payments
of principal, premium, if any, and interest and any other amounts owing under
this Supplemental Indenture, the Indenture or the Notes in Sterling with respect
to any Book-Entry Interest holders in a DTC Global Note that have caused DTC
through the relevant DTC Participant
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to notify the Paying Agent of such holder's election to receive all or a portion
of such payment in Sterling, provided such notification includes wire transfer
instruction to a Sterling account. Such election in respect of any payment must
be made by the holder at the time and in the manner required by the DTC
procedures applicable from time to time and shall, in accordance with such
procedures, be irrevocable and shall relate only to such payment.
(iii) Notwithstanding the foregoing, Book-Entry Interest holders in
Global Notes held on behalf of Euroclear or Clearstream will receive payments of
principal, premium, if any, and interest and any other amounts owing under this
Supplemental Indenture, the Indenture or the Notes in Sterling through the
settlement systems of Euroclear or Clearstream, as the case may be.
Section 2.04. Holders to Be Treated as Owners; Payments of Interest.
(a) The Company, the Paying Agents, the Registrar, the Trustee and
any agent of the Company, the Paying Agents, the Registrar or the Trustee may
deem and treat the person in whose name any Definitive Note is registered as the
absolute owner of such Note for the purpose of receiving payment of or on
account of the Principal of and, subject to the provisions of this Supplemental
Indenture and the Indenture, interest, Additional Amounts and Additional
Interest and any other amounts due on such Definitive Note and for all other
purposes; and neither the Company, any Paying Agent, the Registrar, the Trustee
nor any agent of the Company, any Paying Agent, the Registrar or the Trustee
shall be affected by any notice to the contrary. The Company, the Paying Agents,
the Registrar, the Trustee and any agent of the Company, the Paying Agents, the
Registrar or the Trustee may treat the Holder of any Global Note as the absolute
owner thereof for the purposes of receiving payment of or on account of the
Principal of and, subject to the provisions of this Supplemental Indenture and
the Indenture, interest, Additional Amounts and Additional Interest and any
other amounts due on, such Global Note and for all other purposes; and neither
the Company, the Paying Agents, the Registrar, the Trustee, nor any agent of the
Company, the Paying Agents, the Registrar or the Trustee shall be affected by
any notice to the contrary. All such payments so made to any such Person, or
upon his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
Note.
(b) The Person in whose name any Definitive Note is registered at
the close of business on any record date with respect to any Interest Payment
Date shall be entitled to receive the interest, Additional Amounts and
Additional Interest, if any, payable on such Interest Payment Date
notwithstanding any transfer or exchange of such Definitive Note subsequent to
the record date and prior to such Interest Payment Date, except if and to the
extent the Company shall default in the payment of the interest, Additional
Amounts or Additional Interest due on such Interest Payment Date, in which case
such defaulted interest, Additional Amounts or Additional Interest shall be paid
in accordance with Section 2.13. The term "record date" as used with respect to
any Interest Payment Date for the Notes shall mean the date specified as such in
the terms of the Notes. Payments of interest, Additional Amounts and Additional
Interest on the Global Note will be made to the Holder of the Global Note on
each Interest Payment Date; provided that, in the event of an exchange or
transfer of a Book-Entry Interest in a Global Note for Definitive Notes
subsequent to a record date or any special record date and prior to or on the
related Interest Payment Date or other payment date under Section 2.13, any
payment of the interest, Additional Amounts or Additional Interest payable on
such payment date with respect to any such Definitive Note shall be made to the
Holder of the Global Note, notwithstanding Section 2.13 or any other provision
hereof to the contrary.
Section 2.05. Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, interest, Additional Amounts or Additional Interest, if any, on
the Notes, and the Company and the Paying Agents shall notify the Trustee of any
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default by the Company (or any other obligor on the Notes) in making any such
payment. Money held in trust by any Paying Agent need not be segregated except
as required by law and in no event shall any Paying Agent be liable for any
interest on any money received by it hereunder. The Company at any time may
require the Paying Agents to pay all money held by them to the Trustee and
account for any funds disbursed and the Trustee may at any time during the
continuance of any Event of Default specified in Section 6.01(a) or (b), upon
written request to such Paying Agents, require such Paying Agents to pay
forthwith all money so held by it to the Trustee and to account for any funds
disbursed. Upon making such payment, a Paying Agent shall have no further
liability for the money delivered to the Trustee.
If the Company acts as its own Paying Agent for the Notes, it will,
on or before each due date of the principal of, premium, if any, interest,
Additional Amounts or Additional Interest, if any, on the Notes, set aside and
segregate and held in trust for the benefit of the holders of the Notes a sum
sufficient to pay such principal of, premium, if any, interest, Additional
Amounts or Additional Interest, if any, and will notify the Trustee of such
action or any failure to take such action.
Section 2.06. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it from the Registrar of the names
and addresses of the Holders of Definitive Notes, if any. If the Trustee is not
the Registrar, the Company shall furnish to the Trustee and each Paying Agent at
least five Business Days before each Interest Payment Date, and at such other
times as they may request in writing, a list in such form and as of such date as
they may reasonably require of the names and addresses of the Holders of
Definitive Notes, if any.
Section 2.07. Transfer and Exchange; Book-Entry Provisions.
(a) Transfer and Exchange of Global Notes. Transfer of the Global
Notes shall be by delivery. Global Notes may be exchanged or replaced, in whole
or in part, as provided in Sections 2.08 and 2.11. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to Section 2.08 hereof, shall be authenticated and delivered in the
form of, and shall be, a Global Note. A Global Note may not be exchanged for
Definitive Notes other than as provided in this Section 2.07(a) and in the
Notes, subject to compliance with Section 2.07(c).
Owners of Book-Entry Interests shall receive Definitive Notes: (i)
in whole (but not in part), if any of DTC, Euroclear or Clearstream is closed
for business for a continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) or announces an intention permanently to cease
business or does in fact do so and no alternative clearance system satisfactory
to the Trustee is available; (ii) in part, if an Event of Default occurs and is
continuing, upon the request delivered in writing to DTC, Euroclear and/or
Clearstream, the Trustee, the Common Depositary or the Custodian; (iii) in whole
(but not in part) at any time if the Company in its sole discretion determines
that the Global Notes should be exchanged for Definitive Notes; or (iv) in whole
(but not in part), if the Custodian or Common Depositary is at any time
unwilling or unable to continue as Custodian or Common Depositary, as the case
may be, and a successor Custodian or Common Depositary, as the case may be, is
not appointed by the Company within 90 days.
In such an event, the Registrar, subject to compliance with Section
2.07(c), shall issue Definitive Notes, registered in the name or names and
issued in any approved denominations requested by or on behalf of DTC, Euroclear
and/or Clearstream, as applicable (in accordance with their respective customary
procedures and based upon directions received from participants reflecting the
beneficial ownership of Book-Entry Interests), and bearing the Private Placement
Legend unless that legend is not required by applicable law.
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(b) Transfer and Exchange of Book-Entry Interests between Global
Notes. In all cases, transfers of Book-Entry Interests between Global Notes
shall require compliance with subparagraph (i) below, as well as one or more of
the other following subparagraphs, as applicable:
(i) General Provisions Applicable to Transfers and Exchanges of
Book-Entry Interests between Global Notes. In connection with all
transfers and exchanges of Book-Entry Interests (other than transfers of
Book-Entry Interests in connection with which the transferee takes
delivery thereof in the form of a Book-Entry Interest in the same Global
Note or transfers or exchanges resulting in the delivery of one or more
Definitive Notes), the transferor of such Book-Entry Interest must deliver
to the Principal Paying Agent (1) a written and/or electronic order from a
Participant or an indirect participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
debit or cause to be debited a Book-Entry Interest in a Global Note in an
amount equal to the Book-Entry Interest to be transferred or exchanged,
(2) a written and/or electronic 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
Book-Entry Interest in another Global Note in an amount equal to the
Book-Entry Interest to be transferred or exchanged and (3) written and/or
electronic instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase.
The requirements of this Section 2.07(b)(i) shall be deemed to have been
satisfied in connection with any exchange offer for Notes outstanding
under this Supplemental Indenture and the Indenture upon receipt by the
Principal Paying Agent of instructions contained in a letter of
transmittal delivered by any Holder tendering Book-Entry Interests in a
Restricted Global Note in such exchange offer.
(ii) Transfer of Book-Entry Interests in a Restricted Global Note to
Another Restricted Global Note. A Book-Entry Interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in
the form of a Book-Entry Interest in a different Restricted Global Note if
the transfer complies with the requirements of Section 2.07(b)(i) above
and the Principal Paying Agent receives the following:
(A) if the transferee will take delivery in the form of a
Book-Entry Interest in a 144A Global Note, then the transferor must
deliver a certificate in the form of Exhibit D hereto, including the
certifications in item (1) or (3) thereof, together, in the case of
(3), such additional documentation as may be required by the Trustee
and the Company pursuant to the penultimate sentence of the Private
Placement Legend, and
(B) if the transferee will take delivery in the form of a
Book-Entry Interest in a Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit D
hereto, including the certifications in item (2) thereof.
Upon satisfaction of the conditions set forth in this Section 2.07(b)(ii),
the Principal Paying Agent shall (i) instruct the relevant Depositary to
deliver the relevant Global Note(s) to it, (ii) endorse the Schedule to
the relevant Global Note(s) to reflect the relevant increase or decrease
in the principal amount of such Global Note resulting from the applicable
transfer, and (iii) thereafter, return the Global Notes to the relevant
Depositary, together with all information regarding the Participant
accounts to be credited and debited in connection with such transfer.
(iii) Transfer and Exchange of Book-Entry Interests in a Restricted
Global Note for Book-Entry Interests in an Unrestricted Global Note. A
Book-Entry Interest in any Restricted Global Note may be exchanged by any
holder thereof for a Book-Entry Interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
Book-Entry Interest in an Unre-
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stricted Global Note if the exchange or transfer complies with the
requirements of Section 2.07(b)(i) abovesuch transfer is effected pursuant
to an effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities Act
and the transferor delivers a certificate in the form of Exhibit D hereto
including the certifications contained in item (4) thereof.
Upon satisfaction of the conditions set forth in this Section
2.07(b)(iii), the Principal Paying Agent shall (i) instruct the relevant
Depositary to deliver the relevant Global Note(s) to it, (ii) endorse the
Schedule to the relevant Global Note(s) to reflect the relevant increase
or decrease in the principal amount of such Global Note resulting from the
applicable transfer, and (iii) thereafter, return the Global Notes to the
relevant Depositary, together with all information regarding the
Participant accounts to be credited and debited in connection with such
exchange or transfer.
If any such transfer or exchange is effected pursuant to this Section
2.07(b)(iii) at a time when an Unrestricted Global Note has not yet been
issued, the Principal Paying Agent shall so inform the Trustee and the
Company and, thereafter, the Company shall issue and, upon receipt of an
authentication order in the form of an Officers' Certificate from the
Company in accordance with Section 2.02 hereof, the Trustee shall
authenticate, one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of Book-Entry
Interests to be transferred or exchanged.
(c) Exchange of Book-Entry Interests for Definitive Notes. In all
cases in connection with an exchange of a Book-Entry Interest for a Definitive
Note (which in any event is limited to the circumstances contemplated by Section
2.07(a)), the Principal Paying Agent and the Registrar must receive (1) a
written and/or electronic order from a Participant or an Indirect Participant
given to the relevant Depositary in accordance with the Applicable Procedures
directing such Depositary to debit or cause to be debited a Book-Entry Interest
in an amount equal to the Book-Entry Interest to be exchanged, (2) a written
order directing the Registrar to issue or cause to be issued a Definitive Note
in an amount equal to the Book-Entry Interest to be exchanged and (3)
instructions containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the exchange referred to above.
(i) Book-Entry Interests in Restricted Global Notes to Restricted
Definitive Notes. A holder of a Book-Entry Interest in a Restricted Global
Note may exchange such Book-Entry Interest for a Restricted Definitive
Note if the exchange complies with the first paragraph of this Section
2.07(c) and the Principal Paying Agent receives a certificate from such
holder in the form of Exhibit E hereto, including the certifications in
item (1)(a) thereof;
Upon satisfaction of the conditions set forth in this Section 2.07(c)(i),
the Principal Paying Agent shall (i) instruct the Custodian or the Common
Depositary, as the case may be, to deliver the relevant Global Note(s) to
it, (ii) endorse the Schedule to the relevant Global Note(s) to reflect
the relevant decrease in the principal amount of such Global Note
resulting from the applicable transfer or exchange, (iii) thereafter,
return the Global Note to the Custodian or the Common Depositary, as the
case may be, together with all information regarding the Participant
accounts to be debited in connection with such exchange or transfer and
(iv) deliver to the Registrar instructions received by it that contain
information regarding the Person in whose name Definitive Notes shall be
registered to effect such exchange.
The Company shall issue and, upon receipt of an authentication order in
the form of an Officers' Certificate from the Company in accordance with
Section 2.02 hereof, the Trustee shall authenticate, one or more
Definitive Notes in an aggregate principal amount equal to the aggregate
principal amount of Book-Entry Interests so exchanged and in the names set
forth in the instructions received by the Registrar.
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(ii) Book-Entry Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. A holder of a Book-Entry Interest in an
Unrestricted Global Note may exchange such Book-Entry Interest for a
Definitive Note that does not bear the Private Placement Legend if the
exchange complies with the first paragraph of this Section 2.07(c). Upon
satisfaction of the conditions set forth in this Section 2.07(c)(ii), the
Principal Paying Agent shall (i) instruct the Custodian or the Common
Depositary, as the case may be, to deliver the relevant Global Note(s) to
it, (ii) endorse the Schedule to the relevant Global Note(s) to reflect
the relevant decrease in the principal amount of such Global Note
resulting from the exchange, (iii) thereafter, return the Global Note to
the Custodian or the Common Depositary, as the case may be, together with
all information regarding the Participant accounts to be debited in
connection with such exchange and (iv) deliver to the Registrar
instructions received by it that contain information regarding the Person
in whose name Definitive Notes shall be registered to effect such
exchange.
The Company shall issue and, upon receipt of an authentication order in
the form of an Officers' Certificate from the Company in accordance with
Section 2.02 hereof, the Trustee shall authenticate, one or more
Definitive Notes in an aggregate principal amount equal to the aggregate
principal amount of Book-Entry Interests so exchanged and in the names set
forth in the instructions received by the Registrar.
Book-Entry Interests in an Unrestricted Global Note cannot be exchanged
for a Book-Entry Interest in a Restricted Global Note, nor can such Book
Entry Interests be transferred to Persons who take delivery thereof in the
form of a Restricted Definitive Note.
(d) Transfer and Exchange of Definitive Notes for Definitive Notes.
In all cases in connection with any transfer or exchange of Definitive Notes,
the Holder of such Notes shall surrender to the Registrar the Definitive Notes
for transfer or exchange duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Registrar duly executed by such Holder
or by its attorney, duly authorized in writing. In addition, the requesting
Holder shall provide any additional certifications, documents and information,
as applicable, required pursuant to the following provisions of this Section
2.07(d). Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.07(d), the Registrar shall
register the transfer or exchange of Definitive Notes.
(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 D hereto, including the certifications in
item (1) thereof; and
(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 D hereto, including the certifications in item (2) thereof.
(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
any such transfer is effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus
delivery requirements of the Securities Act and the transferor delivers a
certificate in the form of Exhibit D hereto including the certifications
contained in item (4) thereof.
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(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,
consisting of the Note duly endorsed or accompanied by a written
instrument of transfer, in form satisfactory to the Company and the
Registrar, duly executed by the Holder or his attorney duly authorized in
writing, the Registrar shall register the Unrestricted Definitive Notes
pursuant to the instructions from the Holder thereof.
(e) Exchange Offers. Upon the occurrence of an exchange offer for
Notes outstanding under this Supplemental Indenture pursuant to an effective
registration statement under the Securities Act, the Company shall issue and,
upon receipt of an authentication order in the form of an Officers' Certificate
in accordance with Section 2.02, the Trustee shall authenticate (i) one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the Book-Entry Interests in the Restricted Global Notes
tendered for acceptance by Persons that certify or are deemed to have certified
that (x) they are not broker-dealers that acquired the Book-Entry Interests
tendered in the exchange offer directly from the Company or an Affiliate of the
Company, (y) they are not participating in a distribution of the Notes to be
received in the exchange offer and (z) they are not affiliates (as defined in
Rule 144) of the Company, that are accepted for exchange by the Company in the
exchange offer and (ii) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes tendered
for acceptance by Persons who certify to the effect set forth in (i) that are
accepted for exchange by the Company in the exchange offer.
In addition, the Principal Paying Agent shall (i) endorse the
Schedule to the Unrestricted Global Notes issued pursuant to the preceding
paragraph to reflect the principal amount of Restricted Global Notes tendered in
such exchange offer, (ii) deliver such Unrestricted Global Notes to the
Custodian and the Common Depositary, as the case may be, (iii) instruct the
Custodian and the Common Depositary to deliver the relevant Restricted Global
Note(s), (iv) endorse the Schedule to such Restricted Global Note(s) to reflect
the decrease in principal amount resulting from such exchange offer, and (v)
thereafter, return the Restricted Global Notes to the Custodian and the Common
Depositary, as the case may be, together with all information regarding the
Participant accounts to be debited in connection with such exchange offer.
(f) Cancellation of Global Notes. At such time as all Book-Entry
Interests therein have been exchanged for Definitive Notes, a Global Note shall
be returned to or retained and canceled by the Trustee in accordance with
Section 2.12 hereof.
(g) General Provisions Relating to all Transfers and Exchanges.
(i) Title to Global Notes will pass by delivery. To permit
registration of transfers and exchanges of Definitive Notes, the Company
shall execute and, upon the Company's order, the Trustee shall
authenticate Definitive Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange of any Definitive Note, but the
Company may require payment of a sum sufficient to cover any stamp or
transfer tax, duty or governmental charge payable in connection therewith
(other than any such stamp or transfer taxes, duties or similar
governmental charge payable upon exchange, redemption or purchase pursuant
to Sections 2.11, 3.06, 3.07, 3.08, 4.14 and 4.16 of this Supplemental
Indenture and Section 12.5 of the Indenture).
(iii) All Global Notes and Definitive Notes issued upon any transfer
or exchange of Global Notes or Definitive Notes shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Supplemental Indenture and the Indenture, as the
Global Notes or Definitive Notes surrendered upon such transfer or
exchange.
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(iv) The Company shall not be required to register the transfer of
any Definitive Notes:
(1) for a period of 15 calendar days prior to any date fixed
for the redemption of the Notes;
(2) for a period of 15 calendar days immediately prior to the
date fixed for selection of Notes to be redeemed in part;
(3) for a period of 15 calendar days prior to the record date
with respect to any interest payment date; or
(4) which the holder has tendered (and not withdrawn) for
repurchase in connection with a Change of Control Offer or an Excess
Proceeds Offer.
(v) Prior to due presentment for the registration of a transfer of
any Definitive Note, the Trustee, the Paying Agents, the Registrar, any
Agent and the Company may deem and treat the Person in whose name any Note
is registered as the absolute owners of such Note for the purpose of
receiving payment of principal of and interest on such Notes and for all
other purposes, and neither the Trustee, the Paying Agents, the Registrar,
any Agent nor the Company shall be affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
Section 2.08. Replacement Notes.
If a mutilated Definitive Note is surrendered to the Registrar or
the Trustee, if a mutilated Global Note is surrendered to the Principal Paying
Agent or the Trustee, or if the Holder of a Note claims that the Note has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Note in such form as the Notes mutilated, lost,
destroyed or wrongfully taken if, in the case of a lost, destroyed or wrongfully
taken Note, the Holder of such Note furnishes to the Company, the Trustee, the
Principal Paying Agent (in the case of a Global Note) and/or the Registrar (in
the case of a Definitive Note), evidence reasonably acceptable to them of the
ownership and the destruction, loss or theft of such Note. If required by the
Trustee, the Principal Paying Agent (in the case of a Global Note), the
Registrar (in the case of a Definitive Note) or the Company, an indemnity bond
shall be posted, sufficient in the judgment of each to protect the Company, the
Principal Paying Agent (in the case of a Global Note), the Registrar (in the
case of a Definitive Note) and the Trustee from any loss that any of them may
suffer if such Note is replaced. The Company may charge such Holder for the
Company's exceptional out-of-pocket expenses in replacing such Note and the
Registrar or Principal Paying Agent, as the case may be, may charge the Company
for its expenses in replacing such Note. Every replacement Note shall constitute
an additional obligation of the Company.
Section 2.09. Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those canceled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Article Nine,
on or after the date on which the conditions set forth in Article Nine have been
satisfied, those Notes theretofore authenticated and delivered by the Trustee
hereunder and (d) those described in this Section 2.09 as not outstanding.
Subject to Section 2.10, a Note does not cease to be outstanding because the
Company or one of its Affiliates holds the Note.
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If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
If the appropriate Paying Agent holds, in its capacity as such, on
any Maturity Date or on any optional redemption date, money sufficient to pay
all accrued interest, Additional Amounts, if any, Additional Interest, if any,
and Principal with respect to the Notes payable on that date and is authorized
and not prohibited from paying such money to the Holders thereof pursuant to the
terms of this Supplemental Indenture and the Indenture, then on and after that
date such Notes shall cease to be outstanding and interest on the Notes shall
cease to accrue.
Section 2.10. Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any declaration of acceleration or notice of default
or direction, waiver or consent or any amendment, modification or other change
to this Supplemental Indenture or the Indenture, Notes owned by the Company or
an Affiliate of the Company shall be disregarded as though they were not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent or any
amendment, modification or other change to this Supplemental Indenture or the
Indenture, only Notes that a Responsible Officer of the Trustee actually knows
are so owned shall be so disregarded.
Section 2.11. Temporary Notes.
In the event that Definitive Notes are to be issued pursuant to
Section 2.07(a) hereto, until Definitive Notes are prepared and ready for
delivery, the Company may prepare and the Trustee shall upon receipt of a
written order of the Company authenticate temporary Notes. Temporary Notes shall
be substantially in the form of Definitive Notes but may have variations that
the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate Definitive
Notes in exchange for temporary Notes. Until such exchange, temporary Notes
shall be entitled to the same rights, benefits and privileges as Definitive
Notes.
Section 2.12. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and each Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange, payment,
redemption or purchase. The Trustee shall cancel all Notes surrendered for
registration of transfer, exchange, payment, redemption, replacement,
cancellation or purchase and shall dispose of canceled Notes in accordance with
its policy of disposal, unless the Company directs the Trustee to return such
Notes to the Company, and, if so disposed, shall deliver a certificate of
disposition thereof to the Company. The Company may not reissue or resell, or
issue new Notes to replace, Notes that the Company has redeemed, paid or
purchased, or that have been delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults on a payment of interest, Additional Amounts
or Additional Interest on the Notes, it shall pay the defaulted interest,
Additional Amounts or Additional Interest, plus (to the extent permitted by law)
any interest payable (at the rate borne by the Notes) on the defaulted interest,
Additional Amounts or Additional Interest, in accordance with the terms hereof,
to (a) the Persons who are Holders of Definitive Notes, if any, on a subsequent
special record date, which date shall be at least five Business Days prior to
the payment date for such defaulted interest, Additional Amounts or Additional
Interest, and (b) if a Global Note is still outstanding, to the Holder of such
Global Note on such payment date. The Company shall
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fix such special record date and payment date in a manner satisfactory to the
Trustee. At least 15 days before such special record date, the Company shall
mail to each Holder of Definitive Notes, if any, and if any Global Note is still
outstanding, to the applicable Depositary, a notice that states the special
record date, if any, the payment date and the amount of defaulted interest,
Additional Amounts or Additional Interest, and interest payable on such
defaulted interest, if any, to be paid.
Section 2.14. CUSIP and ISIN Number; Common Code.
The Company may use a "CUSIP" number and may use an "ISIN" number
and a common code, and if so, such CUSIP or ISIN number and common code shall be
included in notices of redemption, repurchase or exchange as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP or ISIN
number or common code printed in the notice or on the Notes, and that reliance
may be placed only on any other identification numbers printed on the Notes. The
Company will promptly notify the Trustee, each Paying Agent and the Registrar of
any change in the CUSIP or ISIN number and the common code.
Section 2.15. Deposit of Moneys; Payments by Principal Paying Agent.
Prior to 5:00 p.m. London time on the day prior to each Interest
Payment Date, Redemption Date or Maturity (unless the Company and the Principal
Paying Agent shall agree to another time), the Company shall deposit with the
Principal Paying Agent in immediately available funds, an amount in Sterling
sufficient to make cash payments, if any, due on such Interest Payment Date,
Redemption Date or Maturity, as the case may be.
Principal of, premium, if any, interest, Additional Interest, if
any, and Additional Amounts, if any, on any Global Notes shall be payable at the
corporate trust office or agency of the Paying Agent in London or Luxembourg
maintained for such purposes. The Company shall pay such amounts in Sterling.
All payments on the Global Notes shall be made by check or by transfer of
immediately available funds to an account of the Holder of the Global Notes in
accordance with instructions given by the Holder.
Principal of, premium, if any, interest, Additional Interest, if
any, and Additional Amounts, if any, on any Definitive Notes shall be payable at
the corporate trust office or agency of the Registrar maintained for such
purposes. In addition, interest on Definitive Notes may be paid by check mailed
to the person entitled thereto as shown on the register for such Definitive
Notes. The Company shall pay such amounts with respect to Definitive Notes in
Sterling.
Section 2.16. Restrictive Legends.
Each Restricted Global Note and Restricted Definitive Note shall
bear the following legend (the "Private Placement Legend") on the face thereof
unless otherwise agreed to by the Company and the Holder thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR
(B) IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (2)
AGREES THAT IT WILL NOT WITHIN
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TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
SECURITY IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Section 2.17. Substitution of Currency.
If the United Kingdom adopts the Euro, it will replace Sterling as
the legal tender in the United Kingdom and, as provided below, result in the
effective redenomination of the Notes into Euros and the regulations of the
European Commission relating to the Euro shall apply to the Notes. The
circumstances and consequences described in this Section 2.17 entitle neither
the Company, the Guarantors nor any Holder to early redemption, rescission,
notice or repudiation of the terms and conditions of the Notes or this
Supplemental Indenture and the Indenture or to raise other defenses or to
request any compensation claim, nor will they affect any of the other
obligations of the Company or the Guarantors under the Notes and under this
Supplemental Indenture and the Indenture.
The Company, the Guarantors and the Trustee shall, without the
consent of the Holders, on or after the Specified Date (as defined below) make
such modifications to the Notes and this Supplemental Indenture or the Indenture
as may be necessary in order to facilitate payment of interest in Euros,
redemption of the Notes at the Euro-equivalent of the Sterling principal amount
of the Notes and associated reconventioning, renominalisation and related
matters as may be proposed by the Company (and confirmed by an independent
financial institution approved by the Trustee to be in conformity with then
applicable market conventions). For this purpose, "Specified Date" means the
date on which the United Kingdom participates in the third stage of European
Economic and Monetary Union pursuant to the treaty (the "Treaty") establishing
the European Community or otherwise participates in European Economic and
Monetary Union in a manner with an effect similar to such third stage.
ARTICLE 3
REDEMPTION
The following redemption provisions shall apply to the Notes (but
not with respect to any other series of Debt Securities), and shall replace in
its entirety Article Five of the Indenture (but not with respect to any other
series of Debt Securities).
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Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section 3.07, at
least 60 days prior to the Redemption Date or during such other period as the
Trustee may agree to, the Company shall notify the Trustee in writing of the
Redemption Date, the principal amount of Notes to be redeemed and the Redemption
Price, and deliver to the Trustee an Officers' Certificate stating that such
redemption will comply with the conditions contained herein.
Section 3.02. Selection of Notes to Be Redeemed.
In the event that less than all of the Notes are to be redeemed at
any time pursuant to an optional redemption, selection of such Notes for
redemption will be made by the Trustee in compliance with the requirements of
the Luxembourg Stock Exchange or, if the Notes are not then listed on the
Luxembourg Stock Exchange, on a pro rata basis, by lot or by such method as the
Trustee shall deem fair and appropriate (subject to the procedures of DTC,
Euroclear or Clearstream, as the case may be); provided, however, that no Notes
of a principal amount of (pound)1,000 or less shall be redeemed in part. A new
Note in a principal amount equal to the unredeemed portion thereof will be
issued in the name of the Holder thereof upon cancellation of the original Note.
Section 3.03. Notice of Redemption.
The Notes will be redeemable in whole or in part upon not less than
30 nor more than 60 days' prior written notice. Such notice of redemption shall,
so long as the Notes are listed on the Luxembourg Stock Exchange and the rules
of such stock exchange shall so require, be published in the Luxembourger Wort
or another newspaper having a general circulation in Luxembourg. Notices to
Holders of Definitive Notes shall also be mailed by first class mail at least 30
but not more than 60 calendar days before the Redemption Date to each Holder at
its address appearing in the Register. For so long as any of the Notes are
represented by the Global Notes, notice to Holders shall (in addition to
publication as described above) also be given by substantially concurrent
delivery of the relevant notice to DTC, Euroclear and/or Clearstream (as the
case may be) for communication to the holders of the Book-Entry Interests.
The notice shall identify the Notes to be redeemed (including the
CUSIP/ISIN number(s) thereof) and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name, address and telephone number of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the
Paying Agent at the address specified to collect the Redemption Price plus
accrued interest, if any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders is
to receive payment of the Redemption Price plus accrued interest to the
Redemption Date upon surrender of the Notes to the Paying Agent;
(6) the subparagraph of the Notes pursuant to which the Notes called
for redemption are being redeemed; and
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(7) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof equal to
(pound)1,000 in principal amount or any integral multiple thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption and that, on and after the Redemption Date,
upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion thereof will be issued.
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is published
and delivered or mailed, as the case may be, Notes called for redemption become
due and payable on the Redemption Date and at the Redemption Price, including
any premium, plus accrued interest to the Redemption Date, if any. Upon
surrender to the Paying Agent, such Notes shall be paid at the Redemption Price,
including any premium, plus accrued interest to the Redemption Date, if any;
provided that if the Redemption Date is after a Record Date and on or prior to
the Interest Payment Date, the accrued interest shall be payable to the Holder
of any redeemed Definitive Notes registered on the relevant Record Date.
Section 3.05. Deposit of Redemption Price.
On or prior to 5:00 p.m., London time, on the Business Day prior to
each Redemption Date (unless the Company and the Principal Paying Agent shall
agree to another time), the Company shall have deposited with the Principal
Paying Agent in immediately available funds Sterling sufficient to pay the
Redemption Price of and accrued interest on all Notes to be redeemed on that
date.
On and after any Redemption Date, if Sterling sufficient to pay the
Redemption Price of and accrued interest on Notes called for redemption shall
have been made available in accordance with the preceding paragraph, the Notes
called for redemption will cease to accrue interest and the only right of the
Holders of such Notes will be to receive payment of the Redemption Price of and,
subject to the proviso in Section 3.04, accrued and unpaid interest on such
Notes to the Redemption Date. If any Note called for redemption shall not be so
paid, interest will continue to accrue and be paid, from the Redemption Date
until such redemption payment is made, on the unpaid principal of the Note and
any interest not paid on such unpaid principal, in each case, at the rate and in
the manner provided for in Section 2.13.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for a Holder a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
Section 3.07. Optional Redemption.
The Notes will be redeemable, in whole or in part, at the option of
the Company at any time at a redemption price equal to the greater of (i) 100%
of the principal amount of such Notes, and (ii) as determined by the Quotation
Agent, the sum of the present values of the remaining scheduled payments of
principal and interest thereon (not including any portion of such payments of
interest accrued as of the date of redemption) discounted to the date of
redemption on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Adjusted Gilt Rate plus 50 basis points, plus, in each
case, accrued interest thereon to the date of redemption.
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Section 3.08. Tax Redemption.
(a) The Notes of any Holder will be subject to redemption as a
whole, but not in part, at the option of the Company (a "Tax Redemption") at any
time upon not less than 30 nor more than 60 days' notice mailed to such Holder
of Notes to be redeemed, at 100% of the principal amount thereof on the
Redemption Date, plus accrued and unpaid interest, if any, to the Redemption
Date, in the event the Company or any Guarantor has become or would be obligated
to pay, on any date on which any amount would be payable with respect to such
Notes or any Guarantee, any Additional Amounts as a result of any change in or
amendment to the laws, policies or treaties (including any regulation or ruling
promulgated thereunder) of the United States of America or any jurisdiction in
which any Guarantor is incorporated (or any prefecture, territory or taxing
authority thereof or therein), or any change in or amendment to any official
position or administration or assessing practices regarding the application or
interpretation of such laws, policies, treaties, rulings or regulations, which
change or amendment is announced or becomes effective on of after November 17,
1999; provided, however, that (i) no notice or redemption shall be given earlier
than 60 days prior to the earliest date on which the Company or such Guarantor
would be obligated to pay such Additional Amounts were a payment in respect of
the Notes then due, (ii) if the Company elects to exercise its Tax Redemption
option, it shall consummate any such Tax Redemption within 180 days following
the date on which the amount to which the payment of such Additional Amounts
relates would be payable to such Holder and (iii) upon the exercise by the
Company of its Tax Redemption option at any time such that, after giving effect
to the exercise of such Tax Redemption option, less than a majority of the
aggregate principal amount of the Notes originally issued remains outstanding
(the "Tax Redemption Offer Triggering Event"), prior to the consummation of such
Tax Redemption the Company shall make an offer to purchase from all Holders (the
"Tax Redemption Offer"), upon not less than 30 nor more than 60 days' notice,
the Notes of such Holders at 100% of the principal amount thereof, plus accrued
and unpaid interest, if any, to the Redemption Date (the "Tax Redemption Offer
Purchase Price"); provided, further, that, prior to any such Tax Redemption, (i)
the Company will deliver to the Trustee a copy of the written opinion of
independent counsel to the effect that the Company has or will become obligated
to pay Additional Amounts as a result of such change, amendment, administration,
application or interpretation and (ii) the Company will use reasonable efforts
to cause the reduction or elimination of the obligation to pay any such
Additional Amounts.
(b) Within 30 days of any Tax Redemption Offer Triggering Event, the
Company shall (a) cause a notice of the Tax Redemption Offer to be sent at least
once to the Dow Jones News Service or similar business news service in the
United States, (b) cause a notice to be published in a leading Luxembourg
newspaper (so long as the Notes are then listed on the Luxembourg Stock
Exchange) and (c) send by first-class mail, postage prepaid, to the Trustee and
to each Holder, at the address appearing in the register maintained by the
Registrar or the Principal Paying Agent, a notice stating:
(i) that the Tax Redemption Offer is being made pursuant to this
covenant and that all Notes tendered will be accepted for payment;
(ii) the Tax Redemption Offer Purchase Price and the purchase date
(which shall be a Business Day no earlier than 30 days nor later than 60
days from the date such notice is mailed (the "Tax Redemption Offer
Payment Date"));
(iii) that any Note not tendered will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the Tax
Redemption Offer Purchase Price, any Notes accepted for payment pursuant
to the Tax Redemption Offer shall cease to accrue interest after the Tax
Redemption Offer Payment Date;
(v) that Holders accepting the offer to have their Notes purchased
pursuant to a Tax Redemption Offer will be required to surrender the Notes
to the Principal Paying Agent at the address
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specified in the notice prior to the close of business on the Business Day
preceding the Tax Redemption Offer Payment Date;
(vi) that Holders will be entitled to withdraw their acceptance if
the Principal Paying Agent receives, not later than the close of business
on the third Business Day preceding the Tax Redemption Offer Payment Date,
a telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Notes delivered for purchase,
and a statement that such Holder is withdrawing his election to have such
Notes purchased;
(vii) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered;
(viii) any other procedures that a Holder must follow to accept a
Tax Redemption Offer or effect withdrawal of such acceptance; and
(ix) the name and address of the Principal Paying Agent.
On the Tax Redemption Offer Payment Date, the Company shall, to the extent
lawful,
(i) accept for payment Notes or portions thereof properly tendered
pursuant to the Tax Redemption Offer,
(ii) deposit with the Paying Agent money sufficient to pay the
purchase price 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 Notes or
portions thereof tendered to the Company.
The Principal Paying Agent shall promptly mail to each Holder so accepted
payment in an amount equal to the purchase price for such Notes, and the Company
shall execute and issue, and the Trustee shall promptly authenticate and mail to
such Holder, a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered; provided that each such new Note shall be issued in an
original principal amount in denominations of (pound)1,000 and integral
multiples thereof.
ARTICLE 4
COVENANTS
The following covenants shall apply to the Notes (but not with
respect to any other series of Debt Securities), and are in addition to the
covenants set forth in Article IV of the Indenture. With respect to the Notes
(but not with respect to any other series of Debt Securities), to the extent
inconsistent with the covenants contained in Article IV of the Indenture the
covenants set forth below in this Supplemental Indenture shall govern.
Section 4.01. Payment of Notes
The Company will pay the principal, premium, if any, interest
(including any Additional Interest) and Additional Amounts (if any) on the Notes
on the dates and in the manner provided in the Notes, this Supplemental
Indenture and the Indenture. An installment of principal or interest shall be
considered paid in full
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on the date it is due if the Trustee or Paying Agent holds, for the benefit of
the Holders, on that date Sterling designated for and sufficient to pay such
installment in full and is not prohibited from paying such money to the Holders
pursuant to the terms of this Supplemental Indenture or the Indenture.
The Company will pay interest on overdue principal and interest on
overdue interest, to the extent lawful as provided for in Section 2.13.
Section 4.02. Provision of Financial Statements.
Whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act, the Company will, to the extent permitted under the Exchange
Act, file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to such Section 13(a) or 15(d) if the Company were so subject, such
documents to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Company would have been required so
to file such documents if the Company were so subject. The Company will also in
any event (x) within 15 days of each Required Filing Date (i) transmit by mail
to all Holders, as their names and addresses appear in the security register,
without cost to such Holders and (ii) file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act if the Company were subject to such Sections and (y) if filing such
documents by the Company with the Commission is not permitted under the Exchange
Act, promptly upon written request and payment of the reasonable cost of
duplication and delivery, supply copies of such documents to any prospective
Holder at the Company's cost.
Section 4.03. Waiver of Stay, Extension or Usury Laws.
The Company and the Guarantors each covenant (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead (as a
defense or otherwise) or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law which
would prohibit or forgive the Company or any Guarantor from paying all or any
portion of the principal of, premium, if any, interest, on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Supplemental Indenture
and the Indenture; and (to the extent that they may lawfully do so) the Company
and the Guarantors each hereby expressly waive all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 4.04. Statement by Officers.
Within 120 days after the close of each fiscal year, the Company
will file with the Trustee a brief certificate from the chief executive officer,
chief financial officer or treasurer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Supplemental Indenture
and the Indenture. For purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Supplemental Indenture and the Indenture.
Section 4.05. Corporate Existence.
Subject to Article Five hereof, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and franchises of the
Company and each Guarantor; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Company shall determine
that the preservation thereof is no longer desir-
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able in the conduct of the business and its Guarantors as a whole and that the
loss thereof is not disadvantageous in any material respect to the Holders.
Section 4.06. Maintenance of Office or Agency.
The Company shall maintain the offices and agencies specified in
Section 2.03 as well as an agent for receipt of service of legal process (which
may be the Company itself), which agent shall have an office located in the
State of New York.
Section 4.07. Compliance with Laws.
The Company will comply, and will cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as would not in the aggregate have a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries taken as a whole.
Section 4.08. Maintenance of Properties and Insurance.
The Company will cause all material properties owned by the Company
or any Restricted Subsidiary or used or held for use in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and kept
in good condition, repair and working order (ordinary wear and tear excepted)
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be consistent with sound business
practice and necessary so that the business carried on in connection therewith
may be properly conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the maintenance of any of
such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Restricted
Subsidiary and not reasonably expected to have a material adverse effect on the
ability of the Company to perform its obligations hereunder.
Section 4.09. Payment of Taxes and Other Claims; Additional Amounts.
(a) The Company will pay or discharge or cause to be paid or
discharged, on or before the date the same shall become due and payable, (a) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any Restricted Subsidiary shown to be due on any return of the Company or any
Restricted Subsidiary or otherwise assessed or upon the income, profits or
property of the Company or any Restricted Subsidiary if failure to pay or
discharge the same could reasonably be expected to have a material adverse
effect on the ability of the Company or any Guarantor to perform its obligations
hereunder and (b) all lawful claims for labor, materials and supplies, which, if
unpaid, would by law become a Lien upon the property of the Company or any
Restricted Subsidiary, except for any Lien permitted to be incurred under
Section 4.13, if failure to pay or discharge the same could reasonably be
expected to have a material adverse effect on the ability of the Company or any
Guarantor to perform its obligations hereunder; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted and in respect of which appropriate reserves
(in the good faith judgment of management of the Company) are being maintained
in accordance with GAAP consistently applied.
(b) (i) All payments made by the Company or any Guarantor under or
with respect to the Notes or any Guarantee will be made free and clear of and
without withholding or deduction for or on account
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of any present or future tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and other liabilities related
thereto) imposed or levied by or on behalf of the government of the United
States of America or of any state, prefecture or territory thereof or by any
authority or agency therein or thereof having power to tax (hereinafter,
"Taxes"), unless the Company or such Guarantor is required to withhold or deduct
Taxes by law, regulation or governmental policy or by the interpretation or
administration thereof. If the Company or any Guarantor is required to withhold
or deduct any amount for or on account of Taxes from any payment made under or
with respect to the Notes or any Guarantee, the Company or such Guarantor will
pay such additional amounts ("Additional Amounts") as may be necessary so that
the net amount received by each Holder (including Additional Amounts) after such
withholding or deduction will not be less than the amount the Holder would have
received if such Taxes had not been withheld or deducted; provided that no
Additional Amounts will be payable with respect to a payment made to a Holder
and no reimbursement shall be made to a Holder for Taxes paid by such Holder
(each such Holder, an "Excluded Holder") with respect to any Tax imposed,
levied, payable or due (i) by reason of the Holder's or beneficial owner's
present or former connection with the United States of America or any other
jurisdiction in which any Guarantor is incorporated or any prefecture or
territory thereof, other than through the mere receipt or holding of Notes or by
reason of the receipt of payments thereunder; (ii) by reason of the failure of
the Holder or beneficial owner of Notes to satisfy any certification,
identification, information or other reporting requirements which the Holder or
such beneficial owner is legally required to satisfy, whether imposed by
statute, treaty, regulation, administrative practice or otherwise, as a
precondition to exemption from, or reduction in the rate of deduction or
withholding of, Taxes; or (iii) by reason of the presentation (where
presentation is required in order to receive payment) of such Notes for payment
more than 30 days after the date such payment became due and payable or was duly
provided for under the terms of the Notes, whichever is later. The obligation of
the Company or such Guarantor to pay Additional Amounts or to reimburse a Holder
for Taxes paid by such Holder in respect of Taxes shall not apply with respect
to: (x) any estate, inheritance, gift, sales, transfer, personal property or
similar Taxes; (y) any Tax which is payable otherwise than by deduction or
withholding from payments made under or with respect to the Notes or any
Guarantee; or (z) Taxes imposed on or with respect to any payment by the Company
or such Guarantor to the Holder or beneficial owner if such Holder or beneficial
owner is a fiduciary or partnership or person other than the sole beneficial
owner of such payment to the extent that such Taxes would not have been imposed
on a beneficiary or settlor with respect to such fiduciary, a member of such
partnership or the beneficial owner of such payment had such beneficiary,
settlor, member or beneficial owner been the Holder of such Note. The Company or
such Guarantor will also (i) make such withholding or deduction compelled by
applicable law and (ii) remit the full amount deducted or withheld to the
relevant authority in accordance with applicable law. The Company or such
Guarantor will, upon written request of a Holder, furnish to each such Holder
certified copies of tax receipts evidencing the payment of any Taxes by the
Company or such Guarantor in such form as provided in the normal course by the
taxing authority imposing such Taxes and as is reasonably available to the
Company or such Guarantor, within 60 days after the later of the date of receipt
of such written request and the date of receipt of such evidence. If
notwithstanding the Company's or such Guarantor's efforts to obtain such
receipts, the same are not obtainable, the Company or such Guarantor will
promptly provide such Holder with other evidence reasonably satisfactory to such
Holder of such payments by the Company or such Guarantor. If the Company
conducts business in any jurisdiction (the "Taxing Jurisdiction") other than the
United States of America, or if any Guarantor conducts business in any Taxing
Jurisdiction other than the jurisdiction under which such Guarantor is
incorporated, in a manner which causes Holders to be liable for taxes on
payments under the Notes or any Guarantee for which they would not have been so
liable but for such conduct of business in the Taxing Jurisdiction, the
provision of the Notes described above shall be considered to apply to such
Holders as if references in such provision to "Taxes" included taxes imposed by
way of deduction or withholding by such Taxing Jurisdiction and references to
Excluded Holder shall be deemed to include Holders or beneficial owners having a
present or former connection with such Taxing Jurisdiction or any state,
prefecture or territory thereof. The Company or such Guarantor will, upon
written request of any Holder (other than an Excluded Holder), reimburse each
such Holder for the amount of (i) any Taxes so levied or imposed and paid by
such Holder as a result of payments made under or with respect to the Notes and
(ii) any Taxes so levied or imposed with respect to any reimbursement under the
foregoing clause (i) and paid by such Holder so that the net amount
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received by such Holder (net of payments made under or with respect to the
Notes) after such reimbursement will not be less than the net amount the Holder
would have received if Taxes on such reimbursement had not been imposed. Neither
the Company nor any Guarantor will take any action or fail to act in any manner
which will have the effect of requiring the payment of any Additional Amounts
such that the Company may exercise its option to effect a Tax Redemption;
provided, however, that the Company and its Subsidiaries will not be required to
change their jurisdiction or alter their operations in any manner and will not
be required to take any other unreasonable act thereunder.
(ii) At least 30 days prior to each date on which any payment under
or with respect to the Notes is due and payable, if the Company or any Guarantor
will be obligated to pay Additional Amounts with respect to such payment (unless
such obligation to pay Additional Amounts arises after the 30th day prior to the
date on which payment under or with respect to the Notes is due and payable, in
which case it shall be promptly thereafter), the Company or such Guarantor will
deliver to the Trustee an Officers' Certificate stating the fact that such
Additional Amounts will be payable and the amounts so payable and will set forth
such other information necessary to enable the Trustee to pay such Additional
Amounts to Holders on the payment date. Whenever in this Supplemental Indenture
and the Indenture there is mentioned, in any context, the payment of principal,
interest, if any, or any other amount payable under or with respect to any Note,
such mention shall be deemed to include mention of the payment of Additional
Amounts to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof.
Section 4.10. Limitation on Indebtedness.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Indebtedness (including any Acquired Indebtedness),
except that the Company and any Guarantor may Incur Indebtedness (including any
Acquired Indebtedness) and any Restricted Subsidiary that is not a Guarantor may
Incur Acquired Indebtedness if, in each case, the Consolidated Fixed Charge
Coverage Ratio for the Company for the four full fiscal quarters immediately
preceding the Incurrence of such Indebtedness taken as one period (and after
giving pro forma effect to (i) the Incurrence of such Indebtedness and (if
applicable) the application of the net proceeds therefrom, including to
refinance other Indebtedness, as if such Indebtedness was Incurred, and the
application of such proceeds occurred, at the beginning of such four-quarter
period; (ii) the Incurrence, repayment or retirement of any other Indebtedness
by the Company and its Restricted Subsidiaries since the first day of such
four-quarter period as if such Indebtedness was Incurred, repaid or retired at
the beginning of such four-quarter period (except that, in making such
computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during such four-quarter period); (iii) in the case of Acquired Indebtedness,
the related acquisition as if such acquisition occurred at the beginning of such
four-quarter period; and (iv) any acquisition or disposition by the Company and
its Restricted Subsidiaries of any company or any business or any assets out of
the ordinary course of business, whether by merger, stock purchase or sale or
asset purchase or sale, or any related repayment of Indebtedness, in each case
since the first day of such four-quarter period, assuming such acquisition or
disposition had been consummated on the first day of such four-quarter period)
is equal to at least 2.00:1.00.
(b) The foregoing limitation will not apply to the Incurrence of any
of the following (collectively "Permitted Indebtedness"):
(i) Indebtedness of the Company and any Restricted Subsidiary under
the Credit Agreement in an aggregate principal amount at any one time
outstanding not to exceed an amount equal to the greater of (x) $1.0
billion, minus the amount of any repayment of such Indebtedness under the
Credit Agreement pursuant to Section 4.10, and (y) the Borrowing Base;
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(ii) Indebtedness of the Company pursuant to the Notes outstanding
on the Issue Date and other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date (other than Indebtedness under
the Credit Agreement);
(iii) Indebtedness of any Guarantor pursuant to a Guarantee;
(iv) Indebtedness of the Company owing to a Restricted Subsidiary;
provided that any Indebtedness of the Company owing to a Restricted
Subsidiary that is not a Guarantor is made pursuant to an intercompany
note in the form attached to this Supplemental Indenture as Exhibit F and
is subordinated in right of payment from and after such time as the Notes
shall become due and payable (whether at Stated Maturity, acceleration or
otherwise) to the payment and performance of the Company's obligations
under the Notes; provided, further, that any disposition, pledge or
transfer of any such Indebtedness to a Person (other than a disposition,
pledge or transfer to a Restricted Subsidiary or a pledge to or for the
benefit of the lenders under the Credit Agreement) shall be deemed to be
an Incurrence of such Indebtedness by the obligor not permitted by this
clause (iv);
(v) Indebtedness of a Restricted Subsidiary owing to the Company or
a Wholly Owned Restricted Subsidiary; provided that, with respect to
Indebtedness owing to a Wholly Owned Restricted Subsidiary that is not a
Guarantor, (x) any such Indebtedness is made pursuant to an intercompany
note in the form attached to this Supplemental Indenture as Exhibit F and
(y) any such Indebtedness shall be subordinated in right of payment from
and after such time as the obligations under the Guarantee by such Wholly
Owned Restricted Subsidiary shall become due and payable to the payment
and performance of such Wholly Owned Restricted Subsidiary's obligations
under its Guarantee; provided, further that (a) any disposition, pledge or
transfer of any such Indebtedness to a Person (other than a disposition,
pledge or transfer to the Company or a Restricted Subsidiary or a pledge
to or for the benefit of the lenders under the Credit Agreement) shall be
deemed to be an Incurrence of such Indebtedness by the obligor not
permitted by this clause (v), and (b) any transaction pursuant to which
any Restricted Subsidiary which has Indebtedness owing to the Company or
any other Restricted Subsidiary, ceases to be a Restricted Subsidiary
shall be deemed to be the Incurrence of Indebtedness by such Restricted
Subsidiary that is not permitted by this clause (v);
(vi) guarantees of any Restricted Subsidiary made in accordance with
the provisions of Section 4.15 of this Supplemental Indenture;
(vii) Hedging Obligations of the Company or any Guarantor entered
into in the ordinary course of business (and not for speculative purposes)
designed to protect against fluctuations in: (x) interest rates in respect
of Indebtedness of the Company or any of its Restricted Subsidiaries, as
long as such obligations at the time Incurred do not exceed the aggregate
principal amount of such Indebtedness then outstanding or in good faith
anticipated to be outstanding within 90 days of such Incurrence, (y)
currencies or (z) commodities;
(viii) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any
Indebtedness described in clauses (ii) and (iii) of this definition of
"Permitted Indebtedness," including any successive refinancings so long as
the aggregate principal amount of Indebtedness represented thereby is not
increased by such refinancing plus the lesser of (1) the stated amount of
any premium, interest or other payment required to be paid in connection
with such a refinancing pursuant to the terms of the Indebtedness being
refinanced or (2) the amount of premium, interest or other payment
actually paid at such time to refinance the Indebtedness, plus, in either
case, the amount of expenses of the Company incurred in connection with
such refinancing and, in the case of Pari Passu Indebtedness or
Subordinated Indebtedness, such refinancing does not reduce the Average
Life to Stated Maturity or the Stated Maturity of such Indebtedness; and
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(ix) Indebtedness, in addition to that described in clauses (i)
through (viii) of this definition of "Permitted Indebtedness," and any
renewals, extensions, substitutions, refinancings or replacements of such
Indebtedness, not to exceed $75.0 million outstanding at any one time in
the aggregate.
Section 4.11. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly:
(i) declare or pay any dividend on, or make any distribution to
holders of, any shares of the Company's Capital Stock (other than
dividends or distributions payable solely in shares of its Qualified
Capital Stock or in options, warrants or other rights to acquire such
Qualified Capital Stock);
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of the Capital Stock of the Company or
any Affiliate thereof (other than any Wholly Owned Restricted Subsidiary
of the Company) or options, warrants or other rights to acquire such
Capital Stock;
(iii) make any principal payment on, or repurchase, redeem, defease,
retire or otherwise acquire for value, prior to any scheduled principal
payment, sinking fund or maturity, any Subordinated Indebtedness;
(iv) declare or pay any dividend or distribution on any Capital
Stock of any Restricted Subsidiary to any Person (other than the Company
or any of its Restricted Subsidiaries) or purchase, redeem or otherwise
acquire or retire for value any Capital Stock of any Restricted Subsidiary
held by any Person (other than the Company or any of its Wholly Owned
Restricted Subsidiaries);
(v) Incur, create or assume any guarantee of Indebtedness of any
Affiliate (other than a Wholly Owned Restricted Subsidiary of the
Company); or
(vi) make any Investment in any Person (other than any Permitted
Investments);
(any of the foregoing payments described in clauses (i) through (vi), other than
any such action that is a Permitted Payment, collectively, "Restricted
Payments") unless after giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than cash, as determined by the
Board of Directors of the Company, whose determination shall be conclusive and
evidenced by a board resolution), (1) no Default or Event of Default shall have
occurred and be continuing and such Restricted Payment shall not be an event
which is, or after notice or lapse of time or both, would be, an "event of
default" under the terms of any Indebtedness of the Company or its Restricted
Subsidiaries; (2) immediately before and immediately after giving effect to such
transaction on a pro forma basis, the Company could Incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under the provisions contained
in Section 4.10; and (3) the aggregate amount of all such Restricted Payments
declared or made after the date of this Supplemental Indenture does not exceed
the sum of:
(A) 50% of the aggregate cumulative Consolidated Net Income of the
Company accrued on a cumulative basis during the period beginning on
December 1, 1998 and ending on the last day of the Company's last fiscal
quarter ending prior to the date of the Restricted Payment (or, if such
aggregate cumulative Consolidated Net Income shall be a loss, minus 100%
of such loss); plus
(B) the aggregate Net Cash Proceeds received after November 17, 1999
by the Company from the issuance or sale (other than to any of its
Subsidiaries) of its shares of Qualified Capital Stock or any options,
warrants or rights to purchase such shares of Qualified Capital Stock of
the Company
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(except, in each case, to the extent such proceeds are used to purchase,
redeem or otherwise retire Capital Stock or Subordinated Indebtedness as
set forth below); plus
(C) the aggregate Net Cash Proceeds received after November 17, 1999
by the Company (other than from any of its Subsidiaries) upon the exercise
of any options or warrants to purchase shares of Qualified Capital Stock
of the Company; plus
(D) the aggregate Net Cash Proceeds received after November 17, 1999
by the Company from debt securities or Redeemable Capital Stock that has
been converted into or exchanged for Qualified Capital Stock of the
Company to the extent such debt securities or Redeemable Capital Stock are
originally sold for cash plus the aggregate Net Cash Proceeds received by
the Company at the time of such conversion or exchange; plus
(E) in the event the Company or any Restricted Subsidiary has made
since November 17, 1999 or makes an Investment in a Person that, as a
result of or in connection with such Investment, becomes a Restricted
Subsidiary, an amount equal to the Company's or any Restricted
Subsidiary's existing Investment in such Person that was previously
treated as a Restricted Payment; plus
(F) so long as the Designation thereof was treated as a Restricted
Payment made after November 17, 1999, with respect to any Unrestricted
Subsidiary that has been redesignated as a Restricted Subsidiary after the
Issue Date in accordance with Section 4.19, an amount equal to the
Company's Investment in such Unrestricted Subsidiary (provided that such
amount shall not in any case exceed the Designation Amount with respect to
such Restricted Subsidiary upon its Designation); plus
(G) $50.0 million; minus
(H) the Designation Amount (measured as of the date of Designation)
with respect to any Subsidiary of the Company which has been designated as
an Unrestricted Subsidiary after November 17, 1999 in accordance with
Section 4.19; minus
(I) all Restricted Payments made after November 17, 1999 (other than
Permitted Payments made and calculated on the basis set forth below).
(b) Notwithstanding the foregoing, and in the case of clauses (ii),
(iii) and (iv) below, so long as there is no Default or Event of Default
continuing, the foregoing provisions shall not prohibit the following actions
(clauses (i) through (iv) being referred to as a "Permitted Payment"):
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment would be
permitted by the provisions of paragraph (a) of this Section 4.11 and such
payment shall be deemed to have been paid on such date of declaration for
purposes of the calculation required by paragraph (a) of this Section
4.11;
(ii) the repurchase, redemption or other acquisition or retirement
of any shares of any class of Capital Stock of the Company in exchange for
(including any such exchange pursuant to the exercise of a conversion
right or privilege or in which cash is paid in lieu of the issuance of
fractional shares or scrip), or out of the Net Cash Proceeds of, a
substantially concurrent issue and sale for cash (other than to a
Subsidiary) of other shares of Qualified Capital Stock of the Company;
provided that the Net Cash Proceeds from the issuance of such shares of
Qualified Capital Stock are excluded from clause (3)(B) of paragraph (a)
of this Section 4.11;
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(iii) any repurchase, redemption, defeasance, retirement,
refinancing or acquisition for value or payment of principal of any
Subordinated Indebtedness in exchange for, or out of the Net Cash Proceeds
of, a substantially concurrent issuance and sale for cash (other than to
any Subsidiary of the Company) of any Qualified Capital Stock of the
Company, provided that the Net Cash Proceeds from the issuance of such
shares of Qualified Capital Stock are excluded from clause (3)(B) of
paragraph (a) of this Section 4.11;
(iv) the repurchase, redemption, defeasance, retirement, refinancing
or acquisition for value or payment of principal of any Subordinated
Indebtedness (other than Redeemable Capital Stock) (a "refinancing")
through the issuance of new Subordinated Indebtedness of the Company,
provided that any such new Subordinated Indebtedness (1) shall be in a
principal amount that does not exceed the principal amount so refinanced
(or, if such Subordinated Indebtedness provides for an amount less than
the principal amount thereof to be due and payable upon a declaration or
acceleration thereof, then such lesser amount as of the date of
determination), plus the lesser of (x) the stated amount of any premium,
interest or other payment required to be paid in connection with such a
refinancing pursuant to the terms of the Indebtedness being refinanced or
(y) the amount of premium, interest or other payment actually paid at such
time to refinance the Indebtedness, plus, in either case, the amount of
expenses of the Company Incurred in connection with such refinancing; (2)
has an Average Life to Stated Maturity greater than the remaining Average
Life to Stated Maturity of the Notes; (3) has a Stated Maturity for its
final scheduled principal payment later than the Stated Maturity for the
final scheduled principal payment of the Notes; and (4) is expressly
subordinated in right of payment to the Notes at least to the same extent
as the Indebtedness to be refinanced.
Section 4.12. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate of the Company (other than the Company or a Wholly Owned Restricted
Subsidiary) unless (i) such transaction or series of transactions is in writing
on terms that are no less favorable to the Company or such Restricted
Subsidiary, as the case may be, than would be available in a comparable
transaction in arm's-length dealings with an unrelated third party, (ii) with
respect to any transaction or series of transactions involving aggregate
payments in excess of $10.0 million, the Company delivers an Officers'
Certificate to the Trustee certifying that such transaction or series of related
transactions complies with clause (i) above and such transaction or series of
related transactions has been approved by the Board of Directors of the Company,
and (iii) with respect to a transaction or series of related transactions
involving aggregate value in excess of $25.0 million, the Company delivers to
the Trustee an opinion of either an independent investment banking firm of
national standing in the United States or an independent public accounting firm
of national standing in the United States, stating that the transaction or
series of transactions is fair to the Company or such Restricted Subsidiary;
provided, however, that this provision shall not apply to any transaction with
an officer or director of the Company entered into in the ordinary course of
business (including compensation or employee benefit arrangements with any
officer or director of the Company).
Section 4.13. Limitations on Liens.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, create, Incur, affirm or suffer to exist any Lien of
any kind upon any of its property or assets (including any intercompany notes),
owned at the date of this Supplemental Indenture or acquired after the date of
this Supplemental Indenture, or any income or profits therefrom, except if the
Notes (or a Guarantee, in the case of Liens of a Guarantor) are directly secured
equally and ratably with (or prior to in the case of Liens with respect to
Subordinated Indebtedness or Indebtedness of a Guarantor subordinated in right
of payment to any Guarantee) the
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obligation or liability secured by such Lien, excluding, however, from the
operation of the foregoing any of the following:
(a) any Lien existing as of the Issue Date;
(b) any Lien arising by reason of (1) any judgment, decree or order
of any court, so long as such Lien is adequately bonded and any
appropriate legal proceedings which may have been duly initiated for the
review of such judgment, decree or order shall not have been finally
terminated or the period within which such proceedings may be initiated
shall not have expired; (2) taxes not yet delinquent or which are being
contested in good faith; (3) security for payment of workers' compensation
or other insurance; (4) good faith deposits in connection with tenders,
leases or contracts (other than contracts for the payment of money); (5)
zoning restrictions, easements, licenses, reservations, provisions,
covenants, conditions, waivers, restrictions on the use of property or
minor irregularities of title (and with respect to leasehold interests,
mortgages, obligations, liens and other encumbrances incurred, created,
assumed or permitted to exist and arising by, through or under a landlord
or owner of the leased property, with or without consent of the lessee),
none of which materially impairs the use of any parcel of property
material to the operation of the business of the Company or any Restricted
Subsidiary or the value of such property for the purpose of such business;
(6) deposits to secure public or statutory obligations, or in lieu of
surety or appeal bonds; (7) certain surveys, exceptions, title defects,
encumbrances, easements, reservations of, or rights of others for, rights
of way, sewers, electric lines, telegraph or telephone lines and other
similar purposes or zoning or other restrictions as to the use of real
property not interfering with the ordinary conduct of the business of the
Company or any of its Restricted Subsidiaries; (8) operation of law in
favor of mechanics, materialmen, laborers, employees or suppliers,
incurred in the ordinary course of business for sums which are not yet
delinquent or are being contested in good faith by negotiations or by
appropriate proceedings which suspend the collection thereof; or (9)
standard custodial, bailee or depository arrangements (including (x) in
respect of deposit accounts with banks and other financial institutions
and (y) standard customer agreements in respect of accounts for the
purchase and sale of securities and other property with brokerage firms or
other types of financial institutions);
(c) any Lien now or hereafter existing on property of the Company or
any Guarantor securing Indebtedness outstanding under the Credit
Agreement;
(d) any Lien securing Acquired Indebtedness created prior to (and
not created in connection with, or in contemplation of) the incurrence of
such Indebtedness by the Company or any Restricted Subsidiary, in each
case which Indebtedness is permitted under the provisions of Section 4.10;
provided that any such Lien only extends to the assets that were subject
to such lien securing such Acquired Indebtedness prior to the related
transaction by the Company or its Restricted Subsidiaries; and
(e) any extension, renewal, refinancing or replacement, in whole or
in part, of any Lien described in the foregoing clauses (a) through (d) so
long as the amount of security is not increased thereby.
Section 4.14. Limitation on Sale of Assets.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, consummate an Asset Sale (other than an
Asset Swap permitted by clause (g) below of this Section 4.14) unless (i) at
least 75% of the proceeds from such Asset Sale are received in cash; provided,
however, that the amount of (A) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet or the notes thereto) of
the Company or any Restricted Subsidiary that are assumed by the transferee in
such Asset Sale and from which the Company or such Restricted Subsidiary is
released and (B) any
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notes or other obligations received by the Company or any such Restricted
Subsidiary from such transferee that are immediately converted by the Company or
such Restricted Subsidiary into cash, shall be deemed cash for purposes of this
Section 4.14, and (ii) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the shares or assets sold (other than in the case of an involuntary
Asset Sale, as determined by the Board of Directors of the Company and evidenced
in a board resolution).
(b) If all or a portion of the Net Cash Proceeds of any Asset Sale
are not required to be applied to repay permanently any secured Indebtedness
then outstanding as required by the terms thereof, or the Company determines not
to apply such Net Cash Proceeds to the permanent repayment of such secured
Indebtedness or if no such secured Indebtedness is then outstanding, then the
Company may within 12 months of the Asset Sale, invest the Net Cash Proceeds in
other properties and assets that (as determined by the Board of Directors of the
Company) replace the properties and assets that were the subject of the Asset
Sale or in properties and assets that will be used in the businesses of the
Company or its Restricted Subsidiaries as existing at such time or reasonably
related thereto. The amount of such Net Cash Proceeds neither used to
permanently repay or prepay secured Indebtedness nor used or invested as set
forth in this paragraph constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals $10.0
million or more, the Company shall apply the Excess Proceeds to the repayment of
the Notes and any Pari Passu Indebtedness required to be repurchased under the
instrument governing such Pari Passu Indebtedness as follows: (a) the Company
shall make an offer to purchase (an "Offer") from all holders of the Notes in
accordance with the procedures set forth in this Supplemental Indenture in the
maximum principal amount (expressed as a multiple of (pound)1,000) of Notes that
may be purchased out of an amount (the "Note Amount") equal to the product of
such Excess Proceeds multiplied by a fraction, the numerator of which is the
outstanding principal amount of the Notes, and the denominator of which is the
sum of the outstanding principal amount of the Notes and such Pari Passu
Indebtedness (subject to proration in the event such amount is less than the
aggregate Offered Price (as defined below) of all Notes tendered) and (b) to the
extent required by such Pari Passu Indebtedness to permanently reduce the
principal amount of such Pari Passu Indebtedness, the Company shall make an
offer to purchase or otherwise repurchase or redeem Pari Passu Indebtedness (a
"Pari Passu Offer") in an amount (the "Pari Passu Debt Amount") equal to the
excess of the Excess Proceeds over the Note Amount; provided that in no event
shall the Pari Passu Debt Amount exceed the principal amount of such Pari Passu
Indebtedness plus the amount of any premium required to be paid to repurchase
such Pari Passu Indebtedness. The offer price shall be payable in cash in an
amount equal to 100% of the principal amount of the Notes plus accrued and
unpaid interest, if any, to the date (the "Offer Date") such Offer is
consummated (the "Offered Price"), in accordance with the procedures set forth
in this Supplemental Indenture. To the extent that the aggregate Offered Price
of the Notes tendered pursuant to the Offer is less than the Note Amount
relating thereto or the aggregate amount of Pari Passu Indebtedness that is
purchased is less than the Pari Passu Debt Amount (the amount of such shortfall,
if any, constituting a "Deficiency"), the Company shall use such Deficiency in
the business of the Company and its Restricted Subsidiaries. Upon completion of
the purchase of all the Notes tendered pursuant to an Offer and the purchase of
the Pari Passu Indebtedness pursuant to a Pari Passu Offer, the amount of Excess
Proceeds, if any, shall be reset at zero.
(d) If the Company becomes obligated to make an Offer pursuant to
clause (c) above, the Notes shall be purchased by the Company, at the option of
the holder thereof, in whole or in part in integral multiples of (pound)1,000,
on a date that is not earlier than 45 days and not later than 60 days from the
date the notice is given to holders, or such later date as may be necessary for
the Company to comply with the requirements under the Exchange Act, subject to
proration in the event the Note Amount is less than the aggregate Offered Price
of all Notes tendered.
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(e) The Company shall comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws or regulations in connection with an Offer.
(f) The Company will not, and will not permit any Subsidiary to,
create or permit to exist or become effective any restriction (other than
restrictions existing under Indebtedness as in effect on the date of this
Supplemental Indenture) as such Indebtedness may be refinanced from time to
time, provided that such restrictions are no less favorable to the Holders of
Notes than those existing on the date of this Supplemental Indenture that would
materially impair the ability of the Company to make an Offer to purchase the
Notes or, if such Offer is made, to pay for the Notes tendered for purchase.
(g) The Company will not, and will not permit any Restricted
Subsidiary to, engage in any Asset Swaps, unless: (i) at the time of entering
into such Asset Swap, and immediately after giving effect to such Asset Swap, no
Default or Event of Default shall have occurred and be continuing or would occur
as a consequence thereof; (ii) in the event such Asset Swap involves an
aggregate amount in excess of $10.0 million, the terms of such Asset Swap have
been approved by a majority of the members of the board of directors of the
Company which determination shall include a determination that the Fair Market
Value of the assets being received in such swap are at least equal to the Fair
Market Value of the assets being swapped and (iii) in the event such Asset Swap
involves an aggregate amount in excess of $20.0 million, the Company has also
received a written opinion from an independent investment banking firm of
nationally recognized standing or an independent public accounting firm of
nationally recognized standing that such Asset Swap is fair to the Company or
such Restricted Subsidiary, as the case may be, from a financial point of view.
(h) Subject to paragraphs (c) and (f) above, within 30 days after
the date on which the amount of Excess Proceeds equals or exceeds $10.0 million,
the Company shall send or cause to be sent by first-class mail, postage prepaid,
to the Trustee and to each Holder of the Notes, at its address appearing in the
Register, in the case of Definitive Notes, or the books and records of the
Principal Paying Agent, in the case of Global Notes, a notice stating or
including:
(1) that the Holder has the right to require the Company to
repurchase, subject to proration, such Holder's Notes at the Offered
Price;
(2) the Offer Date;
(3) the instructions a Holder must follow in order to have its Notes
purchased in accordance with paragraph (c) of this Section; and
(4) (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the Company, the
most recent subsequently filed Quarterly Report on Form 10-Q and any
Current Report on Form 8-K of the Company filed subsequent to such
Quarterly Report, other than Current Reports describing Asset Sales
otherwise described in the offering materials (or corresponding successor
reports) (or in the event the Company is not required to prepare any of
the foregoing Forms, the comparable information required pursuant to
Section 4.02), (ii) a description of material developments in the
Company's business subsequent to the date of the latest of such Reports,
(iii) if material, appropriate pro forma financial information, and (iv)
such other information, if any, concerning the business of the Company
which the Company in good faith believes will enable such Holders to make
an informed investment decision.
(i) Holders electing to have Notes purchased hereunder will be
required to surrender such Notes at the address specified in the notice at least
three Business Days prior to the Offer Date. Holders will be entitled to
withdraw their election to have their Notes purchased pursuant to this Section
4.14 if the
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Company receives, not later than three Business Days prior to the Offer Date, a
telegram, telex, facsimile transmission or letter setting forth (1) the name of
the Holder, (2) the certificate number of the Note in respect of which such
notice of withdrawal is being submitted, (3) the principal amount of the Note
(which shall be (pound)1,000 or an integral multiple thereof) delivered for
purchase by the Holder as to which its election is to be withdrawn, (4) a
statement that such Holder is withdrawing its election to have such principal
amount of such Note purchased, and (5) the principal amount, if any, of such
Note (which shall be (pound)1,000 or an integral multiple thereof) that remains
subject to the original notice of the Offer and that has been or will be
delivered for purchase by the Company.
(j) The Company shall (i) not later than the Offer Date, accept for
payment Notes or portions thereof tendered pursuant to the Offer, (ii) not later
than 10:00 a.m. (New York time) on the Offer Date, deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 2.05) an amount of money in
same day funds (or New York Clearing House funds if such deposit is made prior
to the Offer Date) sufficient to pay the aggregate Offered Price of all the
Notes or portions thereof which are to be purchased on that date and (iii) not
later than the Offer Date, deliver to the Paying Agent (if other than the
Company) an Officers' Certificate stating the Notes or portions thereof accepted
for payment by the Company.
Subject to applicable escheat laws, as provided in the Notes, the
Trustee and the Paying Agent shall return to the Company any cash that remains
unclaimed, together with interest, if any, thereon, held by them for the payment
of the Offering Price; provided, however, that, (x) to the extent that the
aggregate amount of cash deposited by the Company with the Trustee in respect of
an Offer exceeds the aggregate Offered Price of the Notes or portions thereof to
be purchased, then the Trustee shall hold such excess for the Company and (y)
unless otherwise directed by the Company in writing, promptly after the Business
Day following the Offer Date the Trustee shall return any such excess to the
Company together with interest or dividends, if any, thereon.
(k) Notes to be purchased shall, on the Offer Date, become due and
payable at the Offered Price and from and after such date (unless the Company
shall default in the payment of the Offered Price) such Notes shall cease to
bear interest. Such Offered Price shall be paid to such Holder promptly
following the later of the Offer Date and the time of delivery of such Note to
the relevant Paying Agent at the office of such Paying Agent by the Holder
thereof in the manner required. Upon surrender of any such Note for purchase in
accordance with the foregoing provisions, such Note shall be paid by the Company
at the Offered Price; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Offer Date shall be payable to the Holders
of such Notes, registered as such on the relevant record dates according to the
terms and the provisions of Section 2.04 of this Supplemental Indenture;
provided, further, that Notes to be purchased are subject to proration in the
event the Excess Proceeds are less than the aggregate Offered Price of all Notes
tendered for purchase, with such adjustments as may be appropriate by the
Trustee so that only Notes in denominations of (pound)1,000 or integral
multiples thereof, shall be purchased. If any Note tendered for purchase shall
not be so paid upon surrender thereof by deposit of funds with the Trustee or a
Paying Agent in accordance with paragraph (j) above, the principal thereof (and
premium, if any, thereon) shall, until paid, bear interest from the Offer Date
at the rate borne by such Note. Any Note that is to be purchased only in part
shall be surrendered to a Paying Agent at the office of such Paying Agent (with,
if the Company, the note registrar designated pursuant to Section 2.03 of this
Supplemental Indenture or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the note
registrar or the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Note, without
service charge, one or more new Notes of any authorized denomination as
requested by such Holder in an aggregate principal amount equal to, and in
exchange for, the portion of the principal amount of the Note so surrendered
that is not purchased.
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Section 4.15. Limitation on Guarantees by Restricted Subsidiaries.
In the event the Company (i) organizes or acquires any Domestic
Restricted Subsidiary after November 17, 1999 that is not a Guarantor and causes
or permits such Restricted Subsidiary to, directly or indirectly, guarantee the
payment of any Indebtedness ("Other Indebtedness") of the Company or any
Guarantor or (ii) causes or permits any Foreign Restricted Subsidiary that is
not a Guarantor to, directly or indirectly, guarantee the payment of any Other
Indebtedness, then, in each case the Company shall cause such Restricted
Subsidiary to simultaneously execute and deliver a supplemental indenture to the
Supplemental Indenture and the Indenture pursuant to which it will become a
Guarantor under the Supplemental Indenture and the Indenture; provided, however,
that in the event a Domestic Restricted Subsidiary is acquired in a transaction
in which a merger agreement is entered into, such Domestic Restricted Subsidiary
shall not be required to execute and deliver such supplemental indenture until
the consummation of the merger contemplated by any such merger agreement;
provided, further, that if such Other Indebtedness is (i) Indebtedness that is
ranked pari passu in right of payment with the Notes or the Guarantees of such
Restricted Subsidiary, as the case may be, the Guarantee of such Restricted
Subsidiary shall be pari passu in right of payment with the guarantee of the
Other Indebtedness; or (ii) Subordinated Indebtedness, the Guarantees of such
Restricted Subsidiary shall be senior in right of payment to the guarantee of
the Other Indebtedness (which guarantee of such Subordinated Indebtedness shall
provide that such guarantee is subordinated to the Guarantees of such Subsidiary
to the same extent and in the same manner as the Other Indebtedness is
subordinated to the Notes or the Guarantee of such Restricted Subsidiary, as the
case may be).
If the Notes are defeased in accordance with the terms of Article
Nine of this Supplemental Indenture, or if, subject to the requirements of
Article Five of this Supplemental Indenture, all or substantially all of the
assets of any Guarantor or all of the Capital Stock of any Guarantor are sold
(including by issuance or otherwise) by the Company in a transaction
constituting an Asset Sale, and if (x) the Net Cash Proceeds from such Asset
Sale are used in accordance with Section 4.14 or (y) the Company delivers to the
Trustee an Officers' Certificate to the effect that the Net Cash Proceeds from
such Asset Sale shall be used in accordance with Section 4.14 and within the
time limits specified by such Section, then such Guarantor or the Guarantors, as
the case may be (in the event of a defeasance of the Notes or sale or other
disposition of all of the Capital Stock of such Guarantor), or the corporation
acquiring such assets (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) shall be released and
discharged of its Guarantee obligations in respect of this Supplemental
Indenture and the Indenture and the Notes.
Any Guarantor that is designated an Unrestricted Subsidiary pursuant
to and in accordance with Section 4.19 shall upon such Designation be released
and discharged of its Guarantee obligations in respect of this Supplemental
Indenture and the Indenture and the Notes and any Unrestricted Subsidiary whose
Designation is revoked pursuant to Section 4.19 will be required to become a
Guarantor in accordance with Article Ten. In the case where a Guarantor is
released and discharged of its Guarantee, the Company will, if listed on the
Luxembourg Stock Exchange, inform the Luxembourg Stock Exchange and notify
Holders in accordance with Section 10.02.
In addition, a Guarantee of a Guarantor shall be released upon the
sale or transfer of all or substantially all of the assets or all of the Capital
Stock of such Guarantor; provided, that either (i) such sale or transfer
complies with the provisions set forth in Section 4.14 or (ii) such sale or
transfer need not comply with the provisions set forth in Section 4.14 because
the assets or Capital Stock so sold or transferred does not constitute an "Asset
Sale" by operation of the provisions of clause (y) of the last sentence of the
definition of Asset Sale.
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Section 4.16. Purchase of Notes upon a Change of Control.
(a) If a Change of Control shall occur at any time, then each Holder
of Notes shall have the right to require that the Company purchase such Holder's
Notes in whole or in part in integral multiples of (pound)1,000, at a purchase
price (the "Change of Control Purchase Price") in cash in an amount equal to
101% of the principal amount of such Notes, plus accrued and unpaid interest, if
any, to the date of purchase (the "Change of Control Purchase Date"), pursuant
to the offer described in subsection (b) of this Section (the "Change of Control
Offer") and in accordance with the procedures set forth in subsections (b), (c),
(d) and (e) of this Section.
(b) Within 15 days following any Change of Control, the Company
shall notify the Trustee thereof, give written notice (a "Change of Control
Purchase Notice") of such Change of Control to each Holder by first-class mail,
postage prepaid, at its address appearing in the Register, in the case of
Definitive Notes, or in the books and records of the Principal Paying Agent, in
the case of Global Notes and publish such notice in a leading Luxembourg
newspaper, if the Company is then listed on the Luxembourg Stock Exchange
stating or including:
(1) that a Change of Control has occurred, the date of such event,
and that such Holder has the right to require the Company to repurchase
such Holder's Notes at the Change of Control Purchase Price;
(2) the circumstances and relevant facts regarding such Change of
Control (including but not limited to information with respect to pro
forma historical income, cash flow and capitalization after giving effect
to such Change of Control, if any);
(3) (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the Company, the
most recent subsequently filed Quarterly Report on Form 10-Q, as
applicable, and any Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report (or in the event the Company is not
required to prepare any of the foregoing Forms, the comparable information
required to be prepared by the Company and any Guarantor pursuant to
Section 4.19), (ii) a description of material developments in the
Company's business subsequent to the date of the latest of such reports
and (iii) such other information, if any, concerning the business of the
Company which the Company in good faith believes will enable such Holders
to make an informed investment decision;
(4) that the Change of Control Offer is being made pursuant to this
Section 4.16 and that all Notes properly tendered pursuant to the Change
of Control Offer will be accepted for payment at the Change of Control
Purchase Price;
(5) the Change of Control Purchase Date, which shall be a Business
Day no earlier than 30 days nor later than 60 days from the date such
notice is mailed, or such later date as is necessary to comply with
requirements under the Exchange Act;
(6) the Change of Control Purchase Price;
(7) the names and addresses of the Paying Agent and the offices or
agencies referred to in Section 2.03;
(8) that Notes must be surrendered on or prior to the Change of
Control Purchase Date to the Paying Agent at the office of the Paying
Agent or to an office or agency referred to in Section 2.03 to collect
payment;
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(9) that the Change of Control Purchase Price for any Note which has
been properly tendered and not withdrawn will be paid promptly following
the Change of Control Offer Purchase Date;
(10) the procedures for withdrawing a tender of Notes and Change of
Control Purchase Notice;
(11) that any Note not tendered will continue to accrue interest;
and
(12) that, unless the Company defaults in the payment of the Change
of Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Purchase Date.
(c) Upon receipt by the Company of the proper tender of Notes, the
Holder of the Note in respect of which such proper tender was made shall (unless
the tender of such Note is properly withdrawn) thereafter be entitled to receive
solely the Change of Control Purchase Price with respect to such Note. Upon
surrender of any such Note for purchase in accordance with the foregoing
provisions, such Note shall be paid by the Company at the Change of Control
Purchase Price; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Change of Control Purchase Date shall be payable
to the Holders of such Notes registered as such on the relevant record dates
according to the terms and the provisions of Section 2.04. If any Note tendered
for purchase shall not be so paid upon surrender thereof, the principal thereof
(and premium, if any, thereon) shall, until paid, bear interest from the Change
of Control Purchase Date at the rate borne by such Note. Holders electing to
have Notes purchased will be required to surrender such Notes to the Paying
Agent at the address specified in the Change of Control Purchase Notice at least
two Business Days prior to the Change of Control Purchase Date. Any Note that is
to be purchased only in part shall be surrendered to a Paying Agent at the
office of such Paying Agent (with, if the note registrar designated pursuant to
Section 2.03 or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the note
registrar or the Trustee, as the case may be, duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Note, without service charge, one or more new Notes of any authorized
denomination as requested by such Holder in an aggregate principal amount equal
to, and in exchange for, the portion of the principal amount of the Note so
surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control
Purchase Date, accept for payment Notes or portions thereof tendered pursuant to
the Change of Control Offer, (ii) not later than 5:00 p.m. (London time) on the
day preceding Change of Control Purchase Date (unless the Company and the
Principal Paying Agent agree to a different time), deposit with the Principal
Paying Agent an amount of cash sufficient to pay the aggregate Change of Control
Purchase Price of all the Notes or portions thereof which are to be purchased as
of the Change of Control Purchase Date and (iii) not later than the Change of
Control Purchase Date, deliver to the Paying Agent an Officers' Certificate
stating the Notes or portions thereof accepted for payment by the Company. The
Paying Agent shall promptly mail or deliver to Holders of Notes so accepted
payment in an amount equal to the Change of Control Purchase Price of the Notes
purchased from each such Holder, and the Company shall execute and the Trustee
shall promptly authenticate and mail or deliver to such Holders a new Note equal
in principal amount to any unpurchased portion of the Note surrendered. Any
Notes not so accepted shall be promptly mailed or delivered by the Paying Agent
at the Company's expense to the Holder thereof. The Company will publicly
announce the results of the Change of Control Offer on the Change of Control
Purchase Date. For purposes of this Section 4.16, the Company shall choose a
Paying Agent which shall not be the Company.
(e) A Change of Control Purchase Notice may be withdrawn before or
after delivery by the Holder to the Paying Agent at the office of the Paying
Agent of the Note to which such Change of Control Purchase Notice relates, by
means of a written notice of withdrawal delivered by the Holder to the Paying
Agent
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at the office of the Paying Agent or to the office or agency referred to in
Section 2.03 to which the related Change of Control Purchase Notice was
delivered not later than three Business Days prior to the Change of Control
Purchase Date specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Note in respect of which such
notice of withdrawal is being submitted;
(3) the principal amount of the Note (which shall be (pound)1,000 or
an integral multiple thereof) delivered for purchase by the Holder as to
which such notice of withdrawal is being submitted; and
(4) the principal amount, if any, of such Note (which shall be
(pound)1,000 or an integral multiple thereof) that remains subject to the
original Change of Control Purchase Notice and that has been or will be
delivered for purchase by the Company.
(f) Subject to applicable escheat laws, as provided in the Notes,
the Trustee and the Paying Agent shall return to the Company any cash that
remains unclaimed, together with interest or dividends, if any, thereon, held by
them for the payment of the Change of Control Purchase Price; provided, however,
that, (x) to the extent that the aggregate amount of cash deposited by the
Company pursuant to clause (ii) of paragraph (d) above exceeds the aggregate
Change of Control Purchase Price of the Notes or portions thereof to be
purchased, then the Trustee shall hold such excess for the Company and (y)
unless otherwise directed by the Company in writing, promptly after the Business
Day following the Change of Control Purchase Date the Trustee shall return any
such excess to the Company together with interest, if any, thereon.
(g) The Company shall comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws or regulations in connection with a Change of Control Offer.
(h) The Company will not, and will not permit any Subsidiary to,
create or permit to exist or become effective any restriction (other than
restrictions existing under Indebtedness as in effect on the date of this
Supplemental Indenture) that would materially impair the ability of the Company
to make a Change of Control Offer to purchase the Notes or, if such Change of
Control Offer is made, to pay for the Notes tendered for purchase.
Section 4.17. Limitation on Restricted Subsidiary Capital Stock.
The Company will not permit any Restricted Subsidiary of the Company
to issue any Capital Stock, except for (i) Capital Stock issued to and held by
the Company or a Wholly Owned Restricted Subsidiary, (ii) Capital Stock issued
by a Person prior to the time (A) such Person becomes a Restricted Subsidiary,
(B) such Person merges with or into a Restricted Subsidiary or (C) a Restricted
Subsidiary merges with or into such Person, provided that such Capital Stock was
not issued or incurred by such Person in anticipation of the type of transaction
contemplated by subclauses (A), (B) or (C), and (iii) Capital Stock issued or
sold by a Restricted Subsidiary where, immediately after giving effect to such
issuance or sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary.
Section 4.18. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the
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ability of any Restricted Subsidiary of the Company to (i) pay dividends or make
any other distribution on its Capital Stock, (ii) pay any Indebtedness owed to
the Company or a Restricted Subsidiary of the Company, (iii) make any Investment
in the Company or a Restricted Subsidiary of the Company or (iv) transfer any of
its properties or assets to the Company or any Restricted Subsidiary, except (a)
any encumbrance or restriction pursuant to an agreement in effect on the date of
this Supplemental Indenture; (b) any encumbrance or restriction, with respect to
a Restricted Subsidiary that was not a Restricted Subsidiary of the Company on
the date of this Supplemental Indenture, in existence at the time such Person
becomes a Restricted Subsidiary of the Company and, in the case of clauses (a)
and (b), not incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary; (c) any encumbrance or restriction existing
under any agreement that extends, renews, refinances or replaces the agreements
containing the encumbrances or restrictions in the foregoing clauses (a) and
(b), or in this clause (c), provided that the terms and conditions of any such
encumbrances or restrictions are not materially less favorable to the holders of
the Notes than those under or pursuant to the agreement evidencing the
Indebtedness so extended, renewed, refinanced or replaced (except that an
encumbrance or restriction that is not more restrictive than those set forth in
this Supplemental Indenture and the Indenture shall in any event be permitted
hereunder); and (d) any encumbrance or restriction created pursuant to an asset
sale agreement, stock sale agreement or similar instrument pursuant to which an
Asset Sale permitted under Section 4.14 is to be consummated, so long as such
restriction or encumbrance shall be effective only for a period from the
execution and delivery of such agreement or instrument through a termination
date not later than 270 days after such execution and delivery.
Section 4.19. Designation of Unrestricted Subsidiaries.
The Company may designate after the Issue Date any Subsidiary of the
Company as an "Unrestricted Subsidiary" under this Supplemental Indenture and
the Indenture (a "Designation") only if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation;
(ii) at the time of and after giving effect to such Designation, the
Company could Incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) under the Consolidated Fixed Charge Coverage Ratio of the
first paragraph of Section 4.10(a); and
(iii) the Company would be permitted to make an Investment (other
than a Permitted Investment) at the time of Designation (assuming the
effectiveness of such Designation) pursuant to Section 4.11(a) above in an
amount (the "Designation Amount") equal to the amount of the Company's
Investment in such Subsidiary on such date.
Neither the Company nor any Restricted Subsidiary shall at any time
(x) provide credit support for, subject any of its property or assets (other
than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of,
or guarantee, any Indebtedness of any Unrestricted Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness) or (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary. For purposes of the foregoing, the Designation of a Subsidiary of
the Company as an Unrestricted Subsidiary shall be deemed to include the
Designation of all of the Subsidiaries of such Subsidiary.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") only if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such Revocation; and
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(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if Incurred at
such time, have been permitted to be Incurred for all purposes of this
Supplemental Indenture and the Indenture.
All Designations and Revocations must be evidenced by resolutions of
the Board of Directors of the Company, delivered to the Trustee certifying
compliance with the foregoing provisions.
Section 4.20. [Intentionally Omitted]
Section 4.21. Waiver of Certain Covenants.
The Company may omit in a particular instance to comply with any
covenant or condition set forth in Sections 4.01 through 4.21, if, before or
after the time for such compliance, the Holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding or shall, by Act
of such Holders, waive such compliance in such instance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
Section 4.22. Limitation of Applicability of Certain Covenants if Notes Rated
Investment Grade.
Notwithstanding the foregoing, the Company's and its Restricted
Subsidiaries' obligations to comply with the provisions of this Supplemental
Indenture described in Sections 4.10, 4.11, 4.12, 4.17, 4.18, 4.19 and
5.01(a)(iv) will terminate and cease to have any further effect from and after
the first date when the Notes are rated Investment Grade.
ARTICLE 5
SUCCESSOR CORPORATION
The provisions of this Article 5 shall apply to the Notes (but not
with respect to any other series of Debt Securities), and shall replace in its
entirety Section 10.1 of the Indenture as it applies to the Notes (but not with
respect to any other series of Debt Securities). To the extent that any
provisions of this Article 5 are inconsistent with or conflict with any
provisions of Article X of the Indenture, the provisions of this Article 5 shall
govern (but not with respect to any other series of Debt Securities).
Section 5.01. Company or Any Guarantor May Consolidate, etc., Only on Certain
Terms.
(a) The Company shall not, in a single transaction or through a
series of related transactions, consolidate with or merge with or into any other
Person or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety to any Person or
group of affiliated Persons, or permit any of its Restricted Subsidiaries to
enter into any such transaction or transactions if such transaction or
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or disposal of all or substantially all of the properties and
assets of the Company and its Restricted Subsidiaries on a Consolidated basis to
any other Person or group of affiliated Persons, unless at the time and after
giving effect thereto:
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(i) either (a) the Company shall be the continuing corporation, or
(b) the Person (if other than the Company) formed by such consolidation or
into which the Company is merged or the Person which acquires by sale,
assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Company and its
Restricted Subsidiaries on a Consolidated basis (the "Surviving Entity")
shall be a corporation duly organized and validly existing under the laws
of the United States of America, any state thereof or the District of
Columbia and such Person assumes, by a supplemental indenture in a form
reasonably satisfactory to the Trustee, all the obligations of the Company
under the Notes and this Supplemental Indenture shall remain in full force
and effect;
(ii) immediately before and immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) immediately after giving effect to such transaction on a pro
forma basis, the Consolidated Net Worth of the Company (or the Surviving
Entity if the Company is not the continuing obligor under this
Supplemental Indenture and the Indenture) is equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such
transaction;
(iv) immediately before and immediately after giving effect to such
transaction on a pro forma basis (on the assumption that the transaction
occurred on the first day of the four-quarter period immediately prior to
the consummation of such transaction with the appropriate adjustments with
respect to the transaction being included in such pro forma calculation),
the Company (or the Surviving Entity if the Company is not the continuing
obligor under this Supplemental Indenture and the Indenture) could incur
$1.00 of additional Indebtedness under Section 4.10 (other than Permitted
Indebtedness);
(v) each Guarantor, if any, unless it is the other party to the
transactions described above, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Person's obligations
under this Supplemental Indenture and the Indenture and the Notes;
(vi) if any of the property or assets of the Company or any of its
Restricted Subsidiaries would thereupon become subject to any Lien, the
provisions of Section 4.13 are complied with; and
(vii) the Company or the Surviving Entity shall have delivered, or
caused to be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each to the effect that such consolidation, merger, transfer,
sale, assignment, conveyance, lease or other transaction and the
supplemental indenture in respect thereto comply with this Supplemental
Indenture and the Indenture and that all conditions precedent therein or
herein provided for relating to such transaction have been complied with.
(b) Each Guarantor shall not, and the Company will not permit a
Guarantor to, in a single transaction or through a series of related
transactions, merge or consolidate with or into any other corporation (other
than the Company or any other Guarantor) or other entity, or sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of its
properties and assets on a consolidated basis to any entity (other than the
Company or any other Guarantor) unless at the time and after giving effect
thereto:
(i) either (1) such Guarantor shall be the continuing corporation or
partnership or (2) the entity (if other than such Guarantor) formed by
such consolidation or into which such Guarantor is merged or the entity
which acquires by sale, assignment, conveyance, transfer, lease or
disposition the properties and assets of such Guarantor shall be a
corporation duly organized and validly existing under the laws of the
United States, any state thereof or the District of Columbia and shall
expressly assume by an indenture supplemental hereto, executed and
delivered to the Trustee, in a form reasonably satis-
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factory to the Trustee, all the obligations of such Guarantor under its
Guarantee and this Supplemental Indenture and the Indenture;
(ii) immediately before and immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing; and
(iii) such Guarantor shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee, each stating that such
consolidation, merger, sale, assignment, conveyance, transfer, lease or
disposition and such supplemental indenture comply with this Supplemental
Indenture and the Indenture, and thereafter all obligations of the
predecessor shall terminate.
The provisions of this Section 5.01(b) shall not apply to any transaction
(including any Asset Sale made in accordance with Section 4.14) with respect to
any Guarantor (i) if the Guarantee of such Guarantor is released in connection
with such transaction in accordance with the last sentence of Section 4.15 or
(ii) if such transaction need not comply with the provisions set forth in
Section 4.14 because the properties or assets so sold, assigned, conveyed,
transferred, leased or otherwise disposed of do not constitute an "Asset Sale"
by operation of the provisions of clause (y) of the last sentence of the
definition of Asset Sale.
Section 5.02. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company or any Guarantor (except, in the case of a
Guarantor, pursuant to a transaction set forth in the last paragraph of Section
5.01(b)) in accordance with Section 5.01, the successor Person formed by such
consolidation or into which the Company or such Guarantor, as the case may be,
is merged or the successor Person to which such sale, assignment, conveyance,
transfer, lease or disposition is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company or such Guarantor, as the
case may be, under this Supplemental Indenture and the Indenture, the Notes
and/or the Guarantees, as the case may be, with the same effect as if such
successor had been named as the Company or such Guarantor, as the case may be,
herein, in the Notes and/or in the Guarantees, as the case may be. When a
successor assumes all the obligations of its predecessor under this Supplemental
Indenture and the Indenture, the Notes or a Guarantee, as the case may be, the
predecessor shall be released from those obligations; provided that in the case
of a transfer by lease, the predecessor shall not be released from the payment
of principal and interest on the Notes or a Guarantee, as the case may be.
ARTICLE 6
DEFAULTS AND REMEDIES
The provisions of this Article 6 shall apply to the Notes (but not
with respect to any other series of Debt Securities), and shall replace in its
entirety Section 7.1 of the Indenture as it applies to the Notes (but not with
respect to any other series of Debt Securities). To the extent that the
provisions of this Article 6 are inconsistent with or conflict with any
provisions of Article VII of the Indenture, the provisions of this Article 6
shall govern (but not with respect to any other series of Debt Securities).
Section 6.01. Events of Default.
Whenever used herein or in the Indenture, an "Event of Default"
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be occasioned by the provisions
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of this Article Six or be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) there shall be a default in the payment of any interest on any
Note when it becomes due and payable, and such default shall continue for
a period of 30 days;
(b) there shall be a default in the payment of the principal of (or
premium, if any, on) any Note at its Maturity (upon acceleration, optional
or mandatory redemption, required repurchase or otherwise);
(c) (i) there shall be a default in the performance, or breach, of
any covenant or agreement of the Company or any Guarantor under this
Supplemental Indenture or the Indenture (other than a default in the
performance, or breach, of a covenant or agreement which is specifically
dealt with in clauses (a) or (b) or in clauses (ii), (iii) and (iv) of
this clause (c)) and such default or breach shall continue for a period of
30 days after written notice has been given, by certified mail, (x) to the
Company by the Trustee or (y) to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the outstanding
Notes, specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; (ii)
there shall be a default in the performance or breach of the provisions of
Article Five; (iii) the Company shall have failed to make or consummate an
Offer in accordance with the provisions of Section 4.14; or (iv) the
Company shall have failed to make or consummate a Change of Control Offer
in accordance with the provisions of Section 4.16;
(d) one or more defaults shall have occurred under any agreements,
indentures or instruments under which the Company, any Guarantor or any
Subsidiary then has outstanding Indebtedness in excess of $10.0 million in
the aggregate and, if not already matured at its final maturity in
accordance with its terms, such Indebtedness shall have been accelerated;
(e) any Guarantee shall for any reason cease to be, or be asserted
in writing by any Guarantor or the Company not to be, in full force and
effect and enforceable in accordance with its terms, except to the extent
contemplated by this Supplemental Indenture or the Indenture and any such
Guarantee;
(f) one or more judgments, orders or decrees for the payment of
money in excess of $15.0 million either individually or in the aggregate
(net of amounts covered by insurance, bond, surety or similar instrument),
shall be entered against the Company, any Guarantor, any Subsidiary or any
of their respective properties and shall not be discharged and either (a)
any creditor shall have commenced an enforcement proceeding upon such
judgment, order or decree or (b) there shall have been a period of 60
consecutive days during which a stay of enforcement of such judgment or
order, by reason of an appeal or otherwise, shall not be in effect;
(g) any holder or holders of at least $10.0 million in aggregate
principal amount of Indebtedness of the Company, any Guarantor or any
Subsidiary after a default under such Indebtedness shall notify the
Trustee of the intended sale or disposition of any assets of the Company,
any Guarantor or any Subsidiary that have been pledged to or for the
benefit of such holder or holders to secure such Indebtedness or shall
commence proceedings, or take any action (including by way of set-off), to
retain in satisfaction of such Indebtedness or to collect on, seize,
dispose of or apply in satisfaction of Indebtedness, assets of the
Company, any Guarantor or any Subsidiary (including funds on deposit or
held pursuant to lock-box and other similar arrangements);
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(h) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the
Company, any Guarantor or any Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or (ii) a decree or order
adjudging the Company, any Guarantor or any Subsidiary bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company, any Guarantor or any
Subsidiary under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company, any Guarantor or any Subsidiary or of
any substantial part of their respective properties, or ordering the
winding up or liquidation of their affairs, and any such decree or order
for relief shall continue to be in effect, or any such other decree or
order shall be unstayed and in effect, for a period of 60 consecutive
days; or
(i) (i) the Company, any Guarantor or any Subsidiary commences a
voluntary case or proceeding under any applicable Bankruptcy Law or any
other case or proceeding to be adjudicated bankrupt or insolvent, (ii) the
Company, any Guarantor or any Subsidiary consents to the entry of a decree
or order for relief in respect of the Company, any Guarantor or such
Subsidiary in an involuntary case or proceeding under any applicable
Bankruptcy Law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, (iii) the Company, any Guarantor or any
Subsidiary files a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, (iv) the Company, any
Guarantor or any Subsidiary (1) consents to the filing of such petition or
the appointment of, or taking possession by, a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company, any Guarantor or such Subsidiary or of any substantial part of
their respective properties, (2) makes an assignment for the benefit of
creditors or (3) admits in writing its inability to pay its debts
generally as they become due, or (v) the Company, any Guarantor or any
Subsidiary takes any corporate action in furtherance of any such actions
in this paragraph (i).
The Company shall deliver to the Trustee within five days after the
occurrence thereof, written notice, in the form of an Officers' Certificate, of
any Default, its status and what action the Company is taking or proposes to
take with respect thereto.
Section 6.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Sections 6.01(h) and (i)) shall occur and be continuing, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Notes then
outstanding may, and the Trustee at the request of the Holders of not less than
25% in aggregate principal amount of the Notes then outstanding shall, declare
all unpaid principal of, premium, if any, and accrued interest on all the Notes
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders of the Notes). If an Event of Default
specified in clause (h) or (i) of Section 6.01 occurs and is continuing, then
all the Notes shall ipso facto become and be immediately due and payable, in an
amount equal to the principal amount of the Notes, together with accrued and
unpaid interest, if any, to the date the Notes become due and payable, without
any declaration or other act on the part of the Trustee or any Holder.
At any time after such declaration of acceleration has been made but
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Notes outstanding, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
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(i) all sums paid or advanced by the Trustee under Section
11.2 of the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all Notes, and
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Notes;
(b) all Events of Default, other than the non-payment of principal
of the Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.03; and
(c) the rescission will not conflict with any judgment or decree.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 6.03. Waiver of Past Defaults and Events of Default.
Subject to Sections 2.10 and 6.02 hereof, the Holders of a majority
in principal amount of the Notes then outstanding have the right to waive past
Defaults under this Supplemental Indenture and the Indenture except a Default in
the payment of the principal of, or interest or premium, if any, on any Note as
specified in clauses (a) and (b) of Section 6.01 or in respect of a covenant or
a provision which cannot be modified or amended without the consent of all
Holders as provided for in Section 8.02. The Company shall deliver to the
Trustee an Officers' Certificate stating that the requisite percentage of
Holders have consented to such waiver and attaching copies of such consents. In
case of any such waiver, the Company, the Trustee and the Holders shall be
restored to their former positions and rights hereunder and under the Notes,
respectively. This paragraph of this Section 6.03 shall be in lieu of ss.
316(a)(1)(B) of the TIA and ss. 316(a)(1)(B) of the TIA is hereby expressly
excluded from this Supplemental Indenture and the Indenture and the Notes, as
permitted by the TIA.
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 Supplemental Indenture and the Indenture, but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
ARTICLE 7
[INTENTIONALLY OMITTED]
ARTICLE 8
SUPPLEMENTAL INDENTURES
The following provisions of this Article 8 shall apply to the Notes
(but not with respect to any other series of Debt Securities), and shall replace
in their entirety Sections 12.1 and 12.2 of the Indenture (but not with respect
to any other series of Debt Securities). To the extent that the provisions of
this Article 8 are inconsistent with or conflict with any provisions of Article
XII of the Indenture, the provisions of this Article 8 shall govern (but not
with respect to any other series of Debt Securities).
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Section 8.01. Supplemental Indentures and Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantors,
if any, when authorized by a board resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto or
agreements or other instruments with respect to any Guarantee, in form and
substance satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company, any
Guarantor or any other obligor upon the Notes, and the assumption by any
such successor of the covenants of the Company or such Guarantor or
obligor herein and in the Notes and in any Guarantee;
(b) to add to the covenants of the Company, any Guarantor or any
other obligor upon the Notes for the benefit of the Holders, or to
surrender any right or power herein conferred upon the Company, any
Guarantor or any other obligor upon the Notes, as applicable, herein, in
the Notes or in any Guarantee;
(c) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, in the Notes or in any Guarantee, or to make any other provisions
with respect to matters or questions arising under this Supplemental
Indenture and the Indenture, the Notes or any Guarantee; provided that, in
each case, such provisions shall not adversely affect the interests of the
Holders;
(d) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Supplemental Indenture and
the Indenture under the Trust Indenture Act, as contemplated by Section
12.4 of the Indenture or otherwise;
(e) to add a Guarantor pursuant to the requirements of Section 4.15;
(f) to evidence and provide the acceptance of the appointment of a
successor trustee hereunder; or
(g) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders as additional security
for the payment and performance of the Indenture Obligations, in any
property or assets, including any which are required to be mortgaged,
pledged or hypothecated, or in which a security interest is required to be
granted to the Trustee pursuant to this Supplemental Indenture and the
Indenture or otherwise.
Section 8.02. Supplemental Indentures and Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Notes, by act of said Holders
delivered to the Company, each Guarantor, if any, and the Trustee, the Company
and each Guarantor (if a party thereto) when authorized by a board resolution,
and the Trustee, may enter into an indenture or indentures supplemental hereto
or agreements or other instruments with respect to any Guarantee in form and
substance satisfactory to the Trustee, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Supplemental Indenture and the Indenture or of modifying in any manner the
rights of the Holders under this Supplemental Indenture and the Indenture, the
Notes or any Guarantee; provided, however, that no such supplemental indenture,
agreement or instrument shall, without the consent of the Holder of each
outstanding Note affected thereby:
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(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the coin or currency in which the principal
of any Note or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the redemption date thereof);
(b) amend, change or modify the obligation of the Company to make
and consummate an Offer with respect to any Asset Sale or Asset Sales in
accordance with Section 4.14 or the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control
in accordance with Section 4.16, including amending, changing or modifying
any definitions with respect thereto;
(c) reduce the percentage in principal amount of the outstanding
Notes, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Supplemental Indenture and the
Indenture or certain defaults hereunder and their consequences provided
for in this Supplemental Indenture and the Indenture or with respect to
any Guarantee;
(d) modify any of the provisions of this Section 8.02, Section 4.21
or Section 6.03, except to increase any such percentage or to provide that
certain other provisions of this Supplemental Indenture and the Indenture
cannot be modified or waived without the consent of the Holder of each
Note affected thereby;
(e) except as otherwise permitted under Article Five, consent to the
assignment or transfer by the Company or any Guarantor of any of its
rights and obligations under this Supplemental Indenture and the
Indenture; or
(f) amend or modify any of the provisions of this Supplemental
Indenture and the Indenture to cause the Notes or any Guarantee to be
subordinate to any other Indebtedness.
Upon the written request of the Company and each Guarantor, if any,
accompanied by a copy of a board resolution authorizing the execution of any
such supplemental indenture or Guarantee, and upon the filing with the Trustee
of evidence of the consent of Holders as aforesaid, the Trustee shall join with
the Company and each Guarantor in the execution of such supplemental indenture
or Guarantee.
It shall not be necessary for any act of Holders under this Section
8.02 to approve the particular form of any proposed supplemental indenture or
Guarantee or agreement or instrument relating to any Guarantee, but it shall be
sufficient if such act shall approve the substance thereof.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
The following provisions of this Article Nine shall apply to the
Notes (but not with respect to any other series of Debt Securities) and shall
replace in its entirety the provisions set forth in Article VI of the Indenture
(but not with respect to any other series of Debt Securities).
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Section 9.01. Satisfaction and Discharge of Supplemental Indenture and the
Indenture.
This Supplemental Indenture and the Indenture (solely with respect
to the Notes and not with respect to any other series of Debt Securities) shall
cease to be of further effect (except as to surviving rights of registration of
transfer or exchange of the Notes herein expressly provided for) and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Supplemental
Indenture and the Indenture (solely with respect to the Notes and not with
respect to any other series of Debt Securities), when
(a) either
(1) all the Notes theretofore authenticated and delivered
(other than (i) Notes which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.08 or (ii)
all Notes for whose payment in Sterling have theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust,
as provided in Section 3.05) have been delivered to the Trustee
canceled or for cancellation; or
(2) all such Notes not theretofore delivered to the Trustee
canceled or for cancellation (x) have become due and payable, (y)
will become due and payable at their Stated Maturity within one
year, or (z) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, and the Company or any Guarantor has irrevocably deposited
or caused to be deposited with the Trustee in trust for such purpose
an amount in Sterling sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee
canceled or for cancellation, including principal of, premium, if
any, and accrued interest at such Stated Maturity or redemption
date;
(b) the Company or any Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company or any Guarantor; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that (i) all conditions
precedent herein provided relating to the satisfaction and discharge of
this Supplemental Indenture and the Indenture have been complied with and
(ii) such satisfaction and discharge will not result in a breach or
violation of, or constitute a default under, this Supplemental Indenture
or the Indenture or any other material agreement or instrument to which
the Company or any Guarantor is a party or by which the Company or any
Guarantor is bound.
Opinions of Counsel required to be delivered under this Section 9.01
may have qualifications customary for opinions of the type required and counsel
delivering such opinions of Counsel may rely on certificates of the Company or
government or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact, including that various
financial covenants have been complied with.
Notwithstanding the satisfaction and discharge of this Supplemental
Indenture and the Indenture, the obligations of the Company to the Trustee under
Section 11.2 of the Indenture and, if Sterling shall have been deposited with
the Trustee pursuant to subclause (2) of Subsection (a) of this Section 9.01,
the obligations of the Trustee under Section 2.05 and Section 9.02 of this
Supplemental Indenture shall survive.
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Section 9.02. Application of Trust Money.
Subject to the provisions of Section 2.05, all Sterling deposited
with the Trustee pursuant to Section 9.01 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Supplemental
Indenture and the Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of,
premium, if any, and interest on the Notes for whose payment such Sterling have
been deposited with the Trustee, but such money need not be segregated from
other funds except to the extent required by law or GAAP.
Section 9.03. Termination of the Company's Obligation.
The Company may, provided that no Default or Event of Default has
occurred and is continuing or would arise therefrom (or, with respect to a
Default or Event of Default specified in Section 6.01(h) or (i), occurs at any
time on or prior to the 91st calendar day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until after
such 91st day)), terminate its and its Restricted Subsidiaries' substantive
obligations in respect of Article Four of this Supplemental Indenture (other
than Sections 4.01, 4.02, 4.04 and 4.06), Article Five hereof and Article Nine
hereof (other than Sections 9.01, 9.02 and 9.03) and any Event of Default
specified in Section 6.01(c) or (d) by (i) depositing with the Trustee, under
the terms of an irrevocable trust agreement for the benefit of the Holders, cash
in Sterling or United Kingdom Government Obligations (or a combination thereof)
sufficient in the opinion of an internationally recognized firm of independent
public accountants (without reinvestment) to pay all remaining Indebtedness on
the Notes, (ii) delivering to the Trustee opinions of counsel in the United
States and the United Kingdom reasonably acceptable to the Trustee confirming
that the holders of the Notes will not recognize income, gain or loss for United
States federal income tax purposes or United Kingdom income tax purposes as a
result of such termination and will be subject to United States federal income
tax and United Kingdom income tax on the same amounts, in the same manner and at
the same times as would have been the case if such termination had not occurred,
(iii) delivering to the Trustee an officers' certificate stating that the
deposit was not made by the Company with the intent of preferring the holders of
the Notes over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company
or others, (iv) delivering to the Trustee Opinions of Counsel to the effect that
(A) the trust funds will not be subject to any rights of holders of Indebtedness
of the Company other than the Notes and (B) assuming no intervening bankruptcy
of the Company between the date of deposit and the 91st day following the
deposit and that no Holder of the Notes is an insider of the Company, 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, (v) delivering to the Trustee Opinions of
Counsel to the effect that the Company's exercise of its option under this
Section 9.03 will not result in any of the Company, the Trustee or the trust
created by the Company's deposit of funds pursuant to this provision becoming or
being deemed to be an "investment company" under the Investment Company Act of
1940, as amended (the "Investment Company Act"), and (vi) delivering to the
Trustee an Officers' Certificate and Opinions of Counsel each stating compliance
with all conditions precedent provided for herein. In addition, the Company may,
provided that no Default or Event of Default has occurred and is continuing or
would arise therefrom (or, with respect to a Default or Event of Default
specified in Section 6.01(h) or (i), occurs at any time on or prior to the 91st
calendar day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 91st day)) and provided
that no default under any Indebtedness would arise therefrom, terminate all of
its and the Guarantors' substantive obligations in respect of the Notes
(including its obligations to pay the principal of and interest on the Notes and
the Guarantors' Guarantee thereof) by (i) depositing with the Trustee, under the
terms of an irrevocable trust agreement, cash in Sterling or United Kingdom
Government Obligations sufficient (without reinvestment) to pay all remaining
Indebtedness on the Notes, (ii) delivering to the Trustee an opinion of counsel
in the United States reasonably acceptable to the Trustee confirming that (A)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Supplemental Indenture,
there has been a change in the applicable
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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 Notes will not
recognize income, gain or loss for United States federal income tax and United
Kingdom income tax purposes as a result of such termination and will be subject
to United States federal income tax and United Kingdom income tax on the same
amounts, in the same manner and at the same times as would have been the case
had such termination not occurred, (iv) delivering to the Trustee an officers'
certificate stating that the deposit was not made by the Company with the intent
of preferring the holders of the Notes over any other creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others, (v) delivering to the Trustee Opinions of
Counsel to the effect that (A) the trust funds will not be subject to any rights
of holders of Indebtedness of the Company other than the Notes and (B) assuming
no intervening bankruptcy of the Company between the date of deposit and the
91st day following the deposit and that no Holder of the Notes is an insider of
the Company, 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, (vi)
delivering to the Trustee Opinions of Counsel to the effect that the Company's
exercise of its option under this Section 9.03 will not result in any of the
Company, the Trustee or the trust created by the Company's deposit of funds
pursuant to this provision becoming or being deemed to be an "investment
company" under the Investment Company Act and (vii) delivering to the Trustee an
Officers' Certificate and Opinions of Counsel each stating compliance with all
conditions precedent provided for herein.
Notwithstanding the foregoing paragraph, the Company's obligations
in Sections 2.02, 2.07, 2.08, 2.11, 2.13, 4.01, 4.06, 6.01, 9.02, 9.05 and 9.06
of this Supplemental Indenture and Sections 4.1, 11.2 and 11.6 of the Indenture
shall survive until the Notes are no longer outstanding. Thereafter, the
Company's obligations in Sections 9.02, 9.05 and 9.06 of this Supplemental
Indenture shall survive.
After such delivery or irrevocable deposit and delivery of an
Officers' Certificate and Opinion of Counsel, the Trustee upon request shall
acknowledge in writing the discharge of the Company's and the Guarantors'
obligations under the Notes, this Supplemental Indenture and the Indenture
except for those surviving obligations specified above.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the United Kingdom Government
Obligations deposited pursuant to this Section 9.03 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 outstanding Notes.
Section 9.04. Application of Trust Money.
The Trustee shall hold in trust money or United Kingdom Government
Obligations deposited with it pursuant to Section 9.03, and shall apply the
deposited money and the proceeds from United Kingdom Government Obligations in
accordance with this Supplemental Indenture and the Indenture solely to the
payment of principal of and interest on the Notes.
Section 9.05. Repayment to Company.
Subject to Section 11.2 of the Indenture and Section 9.03 of this
Supplemental Indenture, the Trustee shall promptly pay to the Company upon
written request any excess money held by it at any time. The Trustee shall pay
to the Company upon written request any money held by it for the payment of
principal or interest that remains unclaimed for two years; provided, however,
that the Trustee before being required to make any payment may at the expense of
the Company cause to be published once in a newspaper of general circulation in
The City of New York and London, England or mail to each Holder entitled to such
money notice that such money remains unclaimed and that, after a date specified
therein which shall be at least 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining shall be repaid to
the
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Company. After payment to the Company, Holders entitled to money must look
solely to the Company for payment as general creditors unless an applicable
abandoned property law designates another person and all liability of the
Trustee or Paying Agent with respect to such money shall thereupon cease.
Section 9.06. Reinstatement.
If the Trustee is unable to apply any money or United Kingdom
Government Obligations in accordance with Section 9.03 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and the Guarantors' obligations under this Supplemental Indenture and
the Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to Section 9.03 until such time as the
Trustee is permitted to apply all such money or United Kingdom Government
Obligations in accordance with Section 9.03; provided, however, that if the
Company has made any payment of interest on or principal of any Notes because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or
United Kingdom Government Obligations held by the Trustee.
ARTICLE 10
GUARANTEES
The provisions of this Article 10 shall apply to the Notes (but not
with respect to any other series of Debt Securities), and shall replace in its
entirety Article XIV of the Indenture as it applies to the Notes (but not with
respect to any other series of Debt Securities).
Section 10.01. Guarantors' Guarantee.
For value received, each of the Guarantors, in accordance with this
Article Ten, hereby absolutely, unconditionally and irrevocably guarantees,
jointly and severally, to the Trustee and the Holders, as if the Guarantors were
the principal debtor, the punctual payment and performance when due of all
Indenture Obligations (which for purposes of this Guarantee shall also be deemed
to include all commissions, fees, charges, costs and other expenses (including
reasonable legal fees and disbursements of one counsel) arising out of or
incurred by the Trustee or the Holders in connection with the enforcement of
this Guarantee).
Section 10.02. Continuing Guarantee; No Right of Set-Off; Independent
Obligation.
(a) This Guarantee shall be a continuing guarantee of the payment
and performance of all Indenture Obligations and shall remain in full force and
effect until the payment in full of all of the Indenture Obligations and shall
apply to and secure any ultimate balance due or remaining unpaid to the Trustee
or the Holders; and this Guarantee shall not be considered as wholly or
partially satisfied by the payment or liquidation at any time or from time to
time of any sum of money for the time being due or remaining unpaid to the
Trustee or the Holders. Each Guarantor, jointly and severally, covenants and
agrees to comply with all obligations, covenants, agreements and provisions
applicable to it in this Supplemental Indenture and the Indenture including
those set forth in Article Five hereof. Without limiting the generality of the
foregoing, each of the Guarantors' liability shall extend to all amounts which
constitute part of the Indenture Obligations and would be owed by the Company
under this Supplemental Indenture and the Indenture and the Notes but for the
fact that they are unenforceable, reduced, limited, impaired, suspended or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
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(b) Each Guarantor, jointly and severally, hereby guarantees that
the Indenture Obligations will be paid to the Trustee without set-off or
counterclaim or other reduction whatsoever (whether for taxes, withholding or
otherwise) in Sterling.
(c) Each Guarantor, jointly and severally, guarantees that the
Indenture Obligations shall be paid strictly in accordance with their terms
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the holders of the
Notes.
(d) Each Guarantor's liability to pay or perform or cause the
performance of the Indenture Obligations under this Guarantee shall arise
forthwith after demand for payment or performance by the Trustee has been given
to the Guarantors in the manner prescribed in Section 4.15.
(e) Except as provided herein, the provisions of this Article Ten
cover all agreements between the parties hereto relative to this Guarantee and
none of the parties shall be bound by any representation, warranty or promise
made by any Person relative thereto which is not embodied herein; and it is
specifically acknowledged and agreed that this Guarantee has been delivered by
each Guarantor free of any conditions whatsoever and that no representations,
warranties or promises have been made to any Guarantor affecting its liabilities
hereunder, and that the Trustee shall not be bound by any representations,
warranties or promises now or at any time hereafter made by the Company to any
Guarantor.
Section 10.03. Guarantee Absolute.
The obligations of the Guarantors hereunder are independent of the
obligations of the Company under the Notes and this Supplemental Indenture and
the Indenture and a separate action or actions may be brought and prosecuted
against any Guarantor whether or not an action or proceeding is brought against
the Company and whether or not the Company is joined in any such action or
proceeding. The liability of the Guarantors hereunder is irrevocable, absolute
and unconditional and (to the extent permitted by law) the liability and
obligations of the Guarantors hereunder shall not be released, discharged,
mitigated, waived, impaired or affected in whole or in part by:
(a) any defect or lack of validity or enforceability in respect of
any Indebtedness or other obligation of the Company or any other Person
under this Supplemental Indenture and the Indenture or the Notes, or any
agreement or instrument relating to either of the foregoing;
(b) any grants of time, renewals, extensions, indulgences, releases,
discharges or modifications which the Trustee or the Holders may extend
to, or make with, the Company, any Guarantor or any other Person, or any
change in the time, manner or place of payment of, or in any other term
of, all or any of the Indenture Obligations, or any other amendment or
waiver of, or any consent to or departure from, this Supplemental
Indenture and the Indenture or the Notes, including any increase or
decrease in the Indenture Obligations;
(c) the taking of security from the Company, any Guarantor or any
other Person, and the release, discharge or alteration of, or other
dealing with, such security;
(d) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any
of the Indenture Obligations and the obligations of any Guarantor
hereunder;
(e) the abstention from taking security from the Company, any
Guarantor or any other Person or from perfecting, continuing to keep
perfected or taking advantage of any security;
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(f) any loss, diminution of value or lack of enforceability of any
security received from the Company, any Guarantor or any other Person, and
including any other guarantees received by the Trustee;
(g) any other dealings with the Company, any Guarantor or any other
Person, or with any security;
(h) the Trustee's or the Holders' acceptance of compositions from
the Company or any Guarantor;
(i) the application by the Holders or the Trustee of all monies at
any time and from time to time received from the Company, any Guarantor or
any other Person on account of any indebtedness and liabilities owing by
the Company or any Guarantor to the Trustee or the Holders, in such manner
as the Trustee or the Holders deems best and the changing of such
application in whole or in part and at any time or from time to time, or
any manner of application of collateral, or proceeds thereof, to all or
any of the Indenture Obligations, or the manner of sale of any Collateral;
(j) the release or discharge of the Company or any Guarantor of the
Notes or of any Person liable directly as surety or otherwise by operation
of law or otherwise for the Notes, other than an express release in
writing given by the Trustee, on behalf of the Holders, of the liability
and obligations of any Guarantor hereunder;
(k) any change in the name, business, capital structure or governing
instrument of the Company or any Guarantor or any refinancing or
restructuring of any of the Indenture Obligations;
(l) the sale of the Company's or any Guarantor's business or any
part thereof;
(m) subject to Section 10.14, any merger or consolidation,
arrangement or reorganization of the Company, any Guarantor, any Person
resulting from the merger or consolidation of the Company or any Guarantor
with any other Person or any other successor to such Person or merged or
consolidated Person or any other change in the corporate existence,
structure or ownership of the Company or any Guarantor;
(n) the insolvency, bankruptcy, liquidation, winding-up,
dissolution, receivership or distribution of the assets of the Company or
its assets or any resulting discharge of any obligations of the Company
(whether voluntary or involuntary) or of any Guarantor or the loss of
corporate existence;
(o) subject to Section 10.14, any arrangement or plan of
reorganization affecting the Company or any Guarantor;
(p) any other circumstance (including any statute of limitations)
that might otherwise constitute a defense available to, or discharge of,
the Company or any Guarantor; or
(q) any modification, compromise, settlement or release by the
Trustee, or by operation of law or otherwise, of the Indenture Obligations
or the liability of the Company or any other obligor under the Notes, in
whole or in part, and any refusal of payment by the Trustee, in whole or
in part, from any other obligor or other guarantor in connection with any
of the Indenture Obligations, whether or not with notice to, or further
assent by, or any reservation of rights against, each of the Guarantors.
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Section 10.04. Right to Demand Full Performance.
In the event of any demand for payment or performance by the Trustee
from any Guarantor hereunder, the Trustee or the Holders shall have the right to
demand its full claim and to receive all dividends or other payments in respect
thereof until the Indenture Obligations have been paid in full, and the
Guarantors shall continue to be jointly and severally liable hereunder for any
balance which may be owing to the Trustee or the Holders by the Company under
this Supplemental Indenture and the Indenture and the Notes. The retention by
the Trustee or the Holders of any security, prior to the realization by the
Trustee or the Holders of its rights to such security upon foreclosure thereon,
shall not, as between the Trustee and any Guarantor, be considered as a purchase
of such security, or as payment, satisfaction or reduction of the Indenture
Obligations due to the Trustee or the Holders by the Company or any part
thereof.
Section 10.05. Waivers.
(a) Each Guarantor hereby expressly waives (to the extent permitted
by law) notice of the acceptance of this Guarantee and notice of the existence,
renewal, extension or the non-performance, non-payment, or non-observance on the
part of the Company of any of the terms, covenants, conditions and provisions of
this Supplemental Indenture and the Indenture or the Notes or any other notice
whatsoever to or upon the Company or such Guarantor with respect to the
Indenture Obligations. Each Guarantor hereby acknowledges communication to it of
the terms of this Supplemental Indenture and the Indenture and the Notes and all
of the provisions therein contained and consents to and approves the same. Each
Guarantor hereby expressly waives (to the extent permitted by law) diligence,
presentment, protest and demand for payment.
(b) Without prejudice to any of the rights or recourses which the
Trustee or the Holders may have against the Company, each Guarantor hereby
expressly waives (to the extent permitted by law) any right to require the
Trustee or the Holders to:
(i) initiate or exhaust any rights, remedies or recourse against the
Company, any Guarantor or any other Person;
(ii) value, realize upon, or dispose of any security of the Company
or any other Person held by the Trustee or the Holders; or
(iii) initiate or exhaust any other remedy which the Trustee or the
Holders may have in law or equity;
before requiring or becoming entitled to demand payment from such Guarantor
under this Guarantee.
Section 10.06. The Guarantors Remain Obligated in Event the Company Is No Longer
Obligated to Discharge Indenture Obligations.
It is the express intention of the Trustee and the Guarantors that
if for any reason the Company has no legal existence, is or becomes under no
legal obligation to discharge the Indenture Obligations owing to the Trustee or
the Holders by the Company or if any of the Indenture Obligations owing by the
Company to the Trustee or the Holders becomes irrecoverable from the Company by
operation of law or for any reason whatsoever, this Guarantee and the covenants,
agreements and obligations of the Guarantors contained in this Article Ten shall
nevertheless be binding upon the Guarantors, as principal debtor, until such
time as all such Indenture Obligations have been paid in full to the Trustee and
all Indenture Obligations owing to the Trustee or the Holders by the Company
have been discharged, or such earlier time as Section 9.01 shall apply to the
Notes and the Guarantors shall be responsible for the payment thereof to the
Trustee or the Holders upon demand.
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Section 10.07. Fraudulent Conveyance; Subrogation.
(a) Any term or provision of this Guarantee to the contrary
notwithstanding, (i) the aggregate amount of the Indenture Obligations
guaranteed hereunder shall be reduced to the extent necessary to prevent this
Guarantee from violating or becoming voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally and (ii) with respect to the liability of
Canandaigua B.V. only, the liability of Canandaigua B.V. under its Guarantee
shall not exceed the net intrinsic value of Canandaigua B.V. without leaving the
other creditors of Canandaigua B.V. unpaid.
(b) Each Guarantor hereby waives all rights of subrogation or
contribution, whether arising by contract or operation of law (including without
limitation, any such right arising under federal bankruptcy law) or otherwise by
reason of any payment by it pursuant to the provisions of this Article Ten.
Section 10.08. Guarantee Is Additional to Other Security.
This Guarantee shall be in addition to and not in substitution for
any other guarantees or other security which the Trustee may now or hereafter
hold in respect of the Indenture Obligations owing to the Trustee or the Holders
by the Company and (except as may be required by law) the Trustee shall be under
no obligation to marshal in favor of each of the Guarantors any other guarantees
or other security or any moneys or other assets which the Trustee may be
entitled to receive or upon which the Trustee or the Holders may have a claim.
Section 10.09. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of the Company
under the Notes or this Supplemental Indenture and the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creations. Each Holder by accepting a Note waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of the Notes.
Section 10.10. No Bar to Further Actions.
Except as provided by law, no action or proceeding brought or
instituted under Article Ten and this Guarantee and no recovery or judgment in
pursuance thereof shall be a bar or defense to any further action or proceeding
which may be brought under this Article Ten and the Guarantee by reason of any
further default or defaults under this Article Ten and the Guarantee or in the
payment of any of the Indenture Obligations owing by the Company.
Section 10.11. Failure To Exercise Rights Shall Not Operate as a Waiver; No
Suspension of Remedies.
(a) No failure to exercise and no delay in exercising, on the part
of the Trustee or the Holders, any right, power, privilege or remedy under this
Article Ten and the Guarantee shall operate as a waiver thereof, nor shall any
single or partial exercise of any rights, power, privilege or remedy preclude
any other or further exercise thereof, or the exercise of any other rights,
powers, privileges or remedies. The rights and remedies herein provided for are
cumulative and not exclusive of any rights or remedies provided in law or
equity.
(b) Nothing contained in this Article Ten shall limit the right of
the Trustee or the Holders to take any action to accelerate the maturity of the
Notes pursuant to Article Six or to pursue any rights or remedies hereunder or
under applicable law.
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Section 10.12. Trustee's Duties; Notice to Trustee.
(a) Any provision in this Article Ten or elsewhere in this
Supplemental Indenture or the Indenture allowing the Trustee to request any
information or to take any action authorized by, or on behalf of any Guarantor,
shall be permissive and shall not be obligatory on the Trustee except as the
Holders may direct in accordance with the provisions of this Supplemental
Indenture and the Indenture or where the failure of the Trustee to request any
such information or to take any such action arises from the Trustee's negligence
or willful misconduct.
(b) The Trustee shall not be required to inquire into the existence,
powers or capacities of the Company, any Guarantor or the officers, directors or
agents acting or purporting to act on their respective behalf.
Section 10.13. Successors and Assigns.
All terms, agreements and conditions of this Article Ten shall
extend to and be binding upon each Guarantor and its successors and permitted
assigns and shall inure to the benefit of and may be enforced by the Trustee and
its successors and assigns; provided, however, that the Guarantors may not
assign any of their rights or obligations hereunder other than in accordance
with Article Five.
Section 10.14. Release of Guarantee.
Concurrently with the payment in full of all of the Indenture
Obligations, the Guarantors shall be released from and relieved of their
obligations under this Article Ten. Upon the delivery by the Company to the
Trustee of an Officer's Certificate and, if requested by the Trustee, an Opinion
of Counsel to the effect that the transaction giving rise to the release of this
Guarantee was made by the Company in accordance with the provisions of this
Supplemental Indenture and the Indenture and the Notes, the Trustee shall
execute any documents reasonably required in order to evidence the release of
the Guarantors from their obligations under this Guarantee. If any of the
Indenture Obligations are revived and reinstated after the termination of this
Guarantee, then all of the obligations of the Guarantors under this Guarantee
shall be revived and reinstated as if this Guarantee had not been terminated
until such time as the Indenture Obligations are paid in full, and each
Guarantor shall enter into an amendment to this Guarantee, reasonably
satisfactory to the Trustee, evidencing such revival and reinstatement.
This Guarantee shall terminate with respect to each Guarantor and
shall be automatically and unconditionally released and discharged as provided
in Section 4.15.
Section 10.15. Execution of Guarantee.
To evidence the Guarantee, each Guarantor hereby agrees to execute
the guarantee substantially in the form set forth in Exhibit C hereto, to be
endorsed on each Note authenticated and delivered by the Trustee and that this
Supplemental Indenture shall be executed on behalf of each Guarantor by one if
its Officers, or one of its other officers (or officer's of the Company) or any
other person (through power of attorney or otherwise) in each case duly
authorized by such Guarantor's board of directors. The signature of any of these
officers on the Notes may be manual or facsimile.
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ARTICLE 11
MISCELLANEOUS
Section 11.01. Ratification of the Indenture.
Except as expressly modified or amended hereby, the Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
Section 11.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to the Company:
Canandaigua Brands, Inc.
300 WillowBrook Office Park
Fairport, New York 14450
Attention: Robert Sands, Executive
Vice President and General Counsel
Fax: (716) 218-2160
Copy to:
McDermott Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Attention: Bernard Kramer, Esq.
Fax: (312) 984-7700
If to the Trustee:
Harris Trust and Savings Bank
311 West Monroe Street
Chicago, Illinois 60690
Attention: Daniel G. Donovan
Fax: (312) 461-3525
The Company or the Trustee by written notice to the others may
designate additional or different addresses for subsequent notices or
communications. Any notice or communication to the Company or the Trustee, shall
be deemed to have been given or made as of the date so delivered if personally
delivered; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and five (5) calendar days after mailing if sent by mail, postage
prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee).
All notices to the Holders will be valid if (i) (A) so long as the
Notes are listed on the Luxembourg Stock Exchange and the rules of such Stock
Exchange shall so require, published in the Luxemburger Wort or another
newspaper having general circulation in Luxembourg and (B) (in addition to
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<PAGE>
publication as described above) also given by substantially concurrent delivery
of the relevant notice to DTC, Euroclear and/or Cedelbank (as the case may be)
for communication to the holders of the Book-Entry Interests, or (ii) in the
case of a Holder of a Definitive Registered Note, including any notice delivered
in connection with TIA ss. 310(b), TIA ss. 313(c), TIA ss. 314(a) and TIA ss.
315(b), mailed to such Holders by first-class mail at their respective addresses
as they appear in the Register (and, if and so long as the Notes are listed on
the Luxembourg Stock Exchange and the rules of such Stock Exchange shall
require, published in a newspaper having general circulation in Luxembourg). If
publication as provided above is not practicable, notice will be given in such
other manner, and shall be deemed to have been given on such date, as the
Trustee may approve. Copies of any such communication or notice to a Holder
shall also be mailed to the Trustee, the Registrar and each Agent at the same
time. To the extent required by the Trust Indenture Act, any notice or
communication shall also be mailed to any Person described in TIA ss. 313(c).
Failure to deliver a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except for a notice to the Trustee, which is deemed given only when received,
and except as otherwise provided in this Indenture, if a notice or communication
is mailed in the manner provided above, it is duly given, whether or not the
addressee receives it.
Section 11.03. Governing Law.
This Supplemental Indenture, the Notes and the Guarantees will be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflicts of law principles thereof. This
Supplemental Indenture is subject to the provisions of the TIA, and shall, to
the extent applicable, be governed by such provisions.
Section 11.04. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
Section 11.05. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Supplemental Indenture and the Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 11.06. Separability.
Each provision of this Supplemental Indenture shall be considered
separable and if for any reason any provision which is not essential to the
effectuation of the basic purpose of this Supplemental Indenture and the
Indenture or the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 11.07. Benefits of Supplemental Indenture and the Indenture.
Nothing in this Supplemental Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Notes, any benefit or any legal or
equitable right, remedy or claim under this Supplemental Indenture and the
Indenture.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Supplemental
Indenture to be duly executed all as of the date and year first written above.
CANANDAIGUA BRANDS, INC.
By:
-----------------------------------------
Name:
Title:
BATAVIA WINE CELLARS, INC.
By:
-----------------------------------------
Name:
Title:
BARTON INCORPORATED
By:
-----------------------------------------
Name:
Title:
BARTON BRANDS, LTD.
By:
-----------------------------------------
Name:
Title:
BARTON BEERS, LTD.
By:
-----------------------------------------
Name:
Title:
BARTON BRANDS OF CALIFORNIA, INC.
By:
-----------------------------------------
Name:
Title:
S-1
<PAGE>
BARTON BRANDS OF GEORGIA, INC.
By:
-----------------------------------------
Name:
Title:
BARTON DISTILLERS IMPORT CORP.
By:
-----------------------------------------
Name:
Title:
BARTON FINANCIAL CORPORATION
By:
-----------------------------------------
Name:
Title:
STEVENS POINT BEVERAGE CO.
By:
-----------------------------------------
Name:
Title:
CANANDAIGUA LIMITED
By:
-----------------------------------------
Name:
Title:
MONARCH IMPORT COMPANY
By:
-----------------------------------------
Name:
Title:
S-2
<PAGE>
CANANDAIGUA WINE COMPANY, INC.
By:
-----------------------------------------
Name:
Title:
CANANDAIGUA EUROPE LIMITED
By:
-----------------------------------------
Name:
Title:
ROBERTS TRADING CORP.
By:
-----------------------------------------
Name:
Title:
POLYPHENOLICS, INC.
By:
-----------------------------------------
Name:
Title:
FRANCISCAN VINEYARDS, INC.
By:
-----------------------------------------
Name:
Title:
ALLBERRY, INC.
By:
-----------------------------------------
Name:
Title:
S-3
<PAGE>
CLOUD PEAK CORPORATION
By:
-----------------------------------------
Name:
Title:
M.J. LEWIS CORP.
By:
-----------------------------------------
Name:
Title:
MT. VEEDER CORPORATION
By:
-----------------------------------------
Name:
Title:
CANANDAIGUA B.V.
By:
-----------------------------------------
Name:
Title:
BARTON CANADA, LTD.
By:
-----------------------------------------
Name:
Title:
S-4
<PAGE>
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:
-----------------------------------------
Name:
Title:
S-5
<PAGE>
EXHIBIT A
[CUSIP/ISIN No.: ]
{Face of Note}
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY OR A SUCCESSOR DEPOSITORY. TRANSFERS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF [ ], OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 2.01 AND 2.07 OF SUPPLEMENTAL INDENTURE NO.
4.(1)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.(2)
CANANDAIGUA BRANDS, INC.
---------------
8 1/2% SERIES C SENIOR NOTE DUE 2009
[CUSIP/ISIN] NO.
No. C- (pound)
CANANDAIGUA BRANDS, INC., a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to , or
registered assigns, the principal sum of United Kingdom pounds sterling on
November 15, 2009, at the office or agency of the Company referred to below, and
to pay interest thereon from May 15, 2000, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on May 15 and November 15, in each year, commencing November 15, 2000,
- ----------
(1) Include this legend on any Global Security.
(2) Include this legend on any Global Security issued to Cede & Co. as nominee
of The Depository Trust Company.
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<PAGE>
at the rate of 8 1/2% per annum, in United Kingdom pounds sterling, until the
principal hereof is paid or duly provided for. Interest shall be computed on the
basis of a 360-day year comprised of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on the regular record date for such interest, which
shall be May 1 or November 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the interest rate borne by the Notes, to the extent lawful, shall forthwith
cease to be payable to the Holder on such regular record date, and may be paid
to the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on a special record date for the payment of
such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Notes not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Subject to the terms of Supplemental Indenture No. 4 hereinafter
referred to, payment of the principal of, premium, if any, and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose, in such coin or currency of the United Kingdom as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company, (i)
in the case of a Global Note, by wire or book entry transfer to the Depository
Trust Company, Morgan Guaranty Trust Company of New York, Brussels office, as
the operator of the Euroclear System or Clearstream Banking or their respective
nominees, or (ii) in all other cases, by check mailed to the address of the
Person entitled thereto as such address shall appear on the Register. Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Note is entitled to the benefits of Guarantees by each of the
Guarantors of the punctual payment when due of the Indenture Obligations made in
favor of the Trustee for the benefit of the Holders. Reference is hereby made to
Article Ten of Supplemental Indenture No. 4 hereinafter referred to for a
statement of the respective rights, limitations of rights, duties and
obligations under the Guarantees of each of the Guarantors.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed by the manual or facsimile signature of its authorized officers.
Dated:
CANANDAIGUA BRANDS, INC.
By:
-------------------------------------
Name:
Title:
A-2
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 8 1/2% Series C Senior Notes due 2009 referred to
in the within-mentioned Indenture.
As Trustee, Harris Trust and Savings Bank
By:
-------------------------------------
Name:
Title:
A-3
<PAGE>
{Reverse of Note}
CANANDAIGUA BRANDS, INC.
8 1/2% SENIOR NOTE DUE 2009
This Note is one of a duly authorized issue of Notes of the Company
designated as its 8 1/2% Senior Notes due 2009 (herein called the "Notes"),
limited in aggregate principal amount to (pound)300,000,000, issued under an
indenture (the "Base Indenture"), dated as of February 25, 1999, among the
Company, certain of the Guarantors and Harris Trust and Savings Bank, as trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), as supplemented by Supplemental Indenture No. 3 ("Supplemental
Indenture No. 3"), dated as of August 6, 1999, among the Company, certain of the
Guarantors and the Trustee, as further supplemented by Supplemental Indenture
No. 4 ("Supplemental Indenture No. 4" and together with the Base Indenture and
Supplemental Indenture No. 3, the "Indenture"), dated as of May 15, 2000, among
the Company, the Guarantors and the Trustee and all further indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Guarantors, the Trustee and the Holders of the Notes, and of
the terms upon which the Notes are, and are to be, authenticated and delivered.
Capitalized terms used herein without definition have the meanings assigned to
such terms in the Indenture.
The Indenture contains provisions for defeasance at any time of (a)
the entire Indebtedness on the Notes or (b) certain restrictive covenants and
related Defaults and Events of Default, in each case upon compliance with
certain conditions set forth therein.
The Notes will be redeemable, in whole or in part, at the option of
the Company at any time at a redemption price equal to the greater of (i) 100%
of the principal amount of such Notes, and (ii) as determined by the Quotation
Agent, the sum of the present values of the remaining scheduled payments of
principal and interest thereon (not including any portion of such payments of
interest accrued as of the date of redemption) discounted to the date of
redemption on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Adjusted Gilt Rate plus 50 basis points, plus, in each
case, accrued interest thereon to the date of redemption.
Upon the occurrence of a Change of Control, each Holder may require
the Company to repurchase all or a portion of such Holder's Notes in an amount
of (pound)1,000 or integral multiples of (pound)1,000, at a purchase price in
cash equal to 101% of the principal amount thereof, together with accrued and
unpaid interest, if any, to the date of repurchase.
Under certain circumstances, in the event the Net Cash Proceeds
received by the Company from any Asset Sale, which proceeds are not used to
repay secured Indebtedness or invested in properties or assets used in the
businesses of the Company or reasonably related thereto, exceeds a specified
amount the Company will be required to apply such proceeds to the repayment of
the Notes and certain indebtedness ranking pari passu to the Notes.
The Notes of any Holder will be subject to a Tax Redemption at 100%
of the principal amount thereof on the Redemption Date, plus accrued and unpaid
interest, if any, to the Redemption Date under the circumstances and subject to
the limitations described in the Indenture.
In the case of any redemption or repurchase of Notes in accordance
with the Indenture, interest installments whose Stated Maturity is on or prior
to the redemption date will be available to the Holders of such
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<PAGE>
Notes of record as of the close of business on the relevant regular record date
referred to on the face hereof. Notes (or portions thereof) for whose redemption
and payment provision is made in accordance with the Indenture shall cease to
bear interest from and after the date of redemption.
In the event of redemption or repurchase of this Note in accordance
with the Indenture in part only, a new Note or Notes for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Notes may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Guarantors and the Holders under the Indenture and
the Notes and the Guarantees at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to
waive compliance by the Company and the Guarantors with certain provisions of
the Indenture and the Notes and the Guarantees and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, any
Guarantor or any other obligor on the Notes (in the event such Guarantor or
other obligor is obligated to make payments in respect of the Notes), which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, place, and rate, and in the coin or
currency, herein prescribed.
This Global Note will be exchangeable for Definitive Notes only (i)
(in whole but not in part) if either DTC, the Euroclear or Clearstream is closed
for business for a continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) or announces an intention permanently to cease
business or does in fact do so and no alternative clearing system satisfactory
to the Trustee is available, or (ii) (in part) if an Event of Default under the
Indenture occurs and is continuing, upon the request delivered in writing to
DTC, Euroclear and/or Clearstream, the Trustee, the Common Depositary or the
Custodian by the owner of a Book-Entry Interest (as defined in the Indenture),
(iii) (in whole but not in part) if at any time the Company in its sole
discretion determines that this Global Note should be exchanged for Definitive
Notes or (iv) (in whole but not in part) if either the Custodian or the Common
Depositary is at any time unwilling or unable to continue as the Common
Depositary or the Custodian, as the case may be, and a successor Common
Depositary or Custodian, as the case may be, is not able to be appointed by the
Company within 90 days. Thereupon (in the case of (i), (ii) and (iv) above, the
holder of this Global Note (acting on the instructions of (a) holder(s) of (a)
Book-Entry Interest(s) may give notice to the Company and (in the case of (iii)
above) the Company may give notice to the Trustee and the Holders, of its
intention to exchange this Global Note for Definitive Notes on or after the
Exchange Date (as defined below).
On or after the Exchange Date the holder of this Global Note may or,
in the case of (iii) above, shall surrender this Global Security to or to the
order of the Principal Paying Agent. In exchange for this Global Security the
Company will deliver, or procure the delivery of, Definitive Notes in registered
form in denominations of (pound)1,000 each or any integral multiple thereof in
exchange for the whole or, in the case of (ii) above, the relevant part of this
Global Note).
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"Exchange Date" means a day specified in the notice requiring
exchange falling not more than 60 days after that on which such notice is given
and on which banks are open for business in the city in which the specified
office of the Principal Paying Agent is located and in the city in which the
relevant clearing system is located.
Upon (i) any exchange of a part of this Global Note for all or a
part another Global Note or for Definitive Notes or (ii) the purchase by or on
behalf of the Company, or any Subsidiary of the Company and cancellation of a
part of this Global Note in accordance with the Section 2.12 of Supplemental
Indenture No. 4, the portion of the principal amount hereof so exchanged or so
purchased and canceled shall be endorsed by or on behalf of the Principal Paying
Agent on behalf of the Company on Part II of the Schedule hereto, whereupon the
principal amount of this Global Note shall be reduced by the principal amount so
exchanged or so purchased and canceled and endorsed. Upon the exchange of the
whole of this Global Note for another Global Note or for Definitive Notes, this
Global Note shall be surrendered to or to the order of the Principal Paying
Agent and canceled and, if the holder of this Global Note requests, returned to
it together with any relevant Definitive Notes, if applicable.
The Notes in certificated form are issuable only in registered form
without coupons in denominations of (pound)1,000 and any integral multiple
thereof.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to and at the time of due presentment of this Note for
registration of transfer, the Company, any Guarantor, the Trustee and any agent
of the Company, any Guarantor or the Trustee may treat the Person in whose name
this Note is registered as the owner hereof for all purposes, whether or not
this Note is overdue, and neither the Company, the Trustee nor any agent shall
be affected by notice to the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
A-6
<PAGE>
FORM OF TRANSFER NOTICE
I or we assign and transfer this Note to:
Please insert social security or other identifying number of assignee
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Print or type name, address and zip code of assignee and irrevocably appoint
(Agent), to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Dated _______________________________Signed ____________________________________
(Sign exactly as name appears on the other side of this Note)
{Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17 Ad-15}
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<PAGE>
THE SCHEDULES
PART I
PAYMENTS OF PRINCIPAL, PREMIUM AND INTEREST
The following payments on this Global Note have been made:
Remaining principal
amount of this Notation
Global made on
Date Interest Premium Principal Note following behalf of
made paid paid paid such payment the Company
(pound) (pound) (pound) (pound)
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
____ ________ __________ _________ ___________________ ______________
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PART II
EXCHANGES
AND PURCHASES AND CANCELLATIONS
The following exchanges of a part of this Global Note for a like part of another
Global Note, of this Global Note for Definitive Notes and purchases and
cancellations of a part of this Global Note have been made:
<TABLE>
<CAPTION>
Part of principal
amount of this Global
Note exchanged for a
like part of another Part of principal
Global Note or vice amount of this Aggregate principal amount of
versa or of this Global Note this Global Note following
Global Note for purchased and such exchange or purchase and Notation made on
Date made Definitive Notes canceled cancellation behalf of the Company
(pound) (pound) (pound) (pound)
<S> <C> <C> <C> <C>
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
_________ _____________________ _________________ _____________________________ _____________________
</TABLE>
A-9
<PAGE>
EXHIBIT B
{Face of Note}
CANANDAIGUA BRANDS, INC.
---------------
8 1/2% SERIES C SENIOR NOTE DUE 2009
No. C- (pound)
CANANDAIGUA BRANDS, INC., a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to , or
registered assigns, the principal sum of United Kingdom pounds sterling on
November 15, 2009, at the office or agency of the Company referred to below, and
to pay interest thereon from May 15, 2000 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on May 15 and November 15, in each year, commencing November 15, 2000, at the
rate of 8 1/2% per annum, in United Kingdom pounds sterling, until the principal
hereof is paid or duly provided for. Interest shall be computed on the basis of
a 360-day year comprised of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on the regular record date for such interest, which
shall be May 1 or November 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the interest rate borne by the Notes, to the extent lawful, shall forthwith
cease to be payable to the Holder on such regular record date, and may be paid
to the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on a special record date for the payment of
such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Notes not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Subject to the terms of Supplemental Indenture No. 4 hereinafter
referred to, payment of the principal of, premium, if any, and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose, in such coin or currency of the United Kingdom as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company, (i)
in the case of a Global Note, by wire or book entry transfer to the Depository
Trust Company, Morgan Guaranty Trust Company of New York, Brussels office, as
the operator of the Euroclear System or Clearstream Banking or their respective
nominees, or (ii) in all other cases, by check mailed to the address of the
Person entitled thereto as such address shall appear on the Register. Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Note is entitled to the benefits of Guarantees by each of the
Guarantors of the punctual payment when due of the Indenture Obligations made in
favor of the Trustee for the benefit of the Holders. Reference is hereby made to
Article Ten of Supplemental Indenture No. 4 hereinafter referred to for a
statement of
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<PAGE>
the respective rights, limitations of rights, duties and obligations under the
Guarantees of each of the Guarantors.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed by the manual or facsimile signature of its authorized officers.
Dated:
CANANDAIGUA BRANDS, INC.
By:
--------------------------------------
Name:
Title:
Attest:
- -----------------------------
Authorized Officer
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<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 8 1/2% Series C Senior Notes due 2009 referred to
in the within-mentioned Indenture.
As Trustee, Harris Trust and Savings Bank
By:
--------------------------------------
Name:
Title:
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{Reverse of Note}
CANANDAIGUA BRANDS, INC.
8 1/2% SENIOR NOTE DUE 2009
This Note is one of a duly authorized issue of Notes of the Company
designated as its 8 1/2% Senior Notes due 2009 (herein called the "Notes"),
limited in aggregate principal amount to (pound)300,000,000, issued under an
indenture (the "Base Indenture"), dated as of February 25, 1999, among the
Company, certain of the Guarantors and Harris Trust and Savings Bank, as trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), as supplemented by Supplemental Indenture No. 3 ("Supplemental
Indenture No. 3"), dated as of August 6, 1999, among the Company, certain of the
Guarantors and the Trustee, as further supplemented by Supplemental Indenture
No. 4 (the "Supplemental Indenture No. 4" and together with the Base Indenture
and Supplemental Indenture No. 3, the "Indenture"), dated as of May 15, 2000,
among the Company, the Guarantors and the Trustee and all further indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Guarantors, the Trustee and the Holders of the Notes, and of
the terms upon which the Notes are, and are to be, authenticated and delivered.
Capitalized terms used herein without definition have the meanings assigned to
such terms in the Indenture.
The Indenture contains provisions for defeasance at any time of (a)
the entire Indebtedness on the Notes or (b) certain restrictive covenants and
related Defaults and Events of Default, in each case upon compliance with
certain conditions set forth therein.
The Notes will be redeemable, in whole or in part, at the option of
the Company at any time at a redemption price equal to the greater of (i) 100%
of the principal amount of such Notes, and (ii) as determined by the Quotation
Agent, the sum of the present values of the remaining scheduled payments of
principal and interest thereon (not including any portion of such payments of
interest accrued as of the date of redemption) discounted to the date of
redemption on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Adjusted Gilt Rate plus 50 basis points, plus, in each
case, accrued interest thereon to the date of redemption.
Upon the occurrence of a Change of Control, each Holder may require
the Company to repurchase all or a portion of such Holder's Notes in an amount
of (pound)1,000 or integral multiples of (pound)1,000, at a purchase price in
cash equal to 101% of the principal amount thereof, together with accrued and
unpaid interest, if any, to the date of repurchase.
Under certain circumstances, in the event the Net Cash Proceeds
received by the Company from any Asset Sale, which proceeds are not used to
repay secured Indebtedness or invested in properties or assets used in the
businesses of the Company or reasonably related thereto, exceeds a specified
amount the Company will be required to apply such proceeds to the repayment of
the Notes and certain indebtedness ranking pari passu to the Notes.
The Notes of any Holder will be subject to a Tax Redemption at 100%
of the principal amount thereof on the Redemption Date, plus accrued and unpaid
interest, if any, to the Redemption Date under the circumstances and subject to
the limitations described in the Indenture.
In the case of any redemption or repurchase of Notes in accordance
with the Indenture, interest installments whose Stated Maturity is on or prior
to the redemption date will be available to the Holders of such
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Notes of record as of the close of business on the relevant regular record date
referred to on the face hereof. Notes (or portions thereof) for whose redemption
and payment provision is made in accordance with the Indenture shall cease to
bear interest from and after the date of redemption.
In the event of redemption or repurchase of this Note in accordance
with the Indenture in part only, a new Note or Notes for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Notes may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Guarantors and the Holders under the Indenture and
the Notes and the Guarantees at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to
waive compliance by the Company and the Guarantors with certain provisions of
the Indenture and the Notes and the Guarantees and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, any
Guarantor or any other obligor on the Notes (in the event such Guarantor or
other obligor is obligated to make payments in respect of the Notes), which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, place, and rate, and in the coin or
currency, herein prescribed.
The Notes in certificated form are issuable only in registered form
without coupons in denominations of (pound)1,000 and any integral multiple
thereof.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to and at the time of due presentment of this Note for
registration of transfer, the Company, any Guarantor, the Trustee and any agent
of the Company, any Guarantor or the Trustee may treat the Person in whose name
this Note is registered as the owner hereof for all purposes, whether or not
this Note is overdue, and neither the Company, the Trustee nor any agent shall
be affected by notice to the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
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<PAGE>
FORM OF TRANSFER NOTICE
I or we assign and transfer this Note to:
Please insert social security or other identifying number of assignee
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Print or type name, address and zip code of assignee and irrevocably appoint____
_______________________
(Agent), to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Dated ___________________________ Signed _______________________________________
(Sign exactly as name appears on the other side of this Note)
{Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17 Ad-15}
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<PAGE>
EXHIBIT C
GUARANTEES
For value received, each of the undersigned hereby unconditionally
guarantees, jointly and severally, to the holder of this Note the payment of
principal of, premium, if any, and interest on the Note upon which these
Guarantees are endorsed in the amounts and at the time when due and payable
whether by declaration thereof, or otherwise, and interest on the overdue
principal and interest, if any, of this Note, if lawful, and the payment or
performance of all other obligations of the Company under the Indenture or the
Notes, to the holder of this Note and the Trustee, all in accordance with and
subject to the terms and limitations of this Note and Article Ten of
Supplemental Indenture No. 4. These Guarantees will not become effective until
the Trustee duly executes the certificate of authentication on this Note.
Dated:_________________
BATAVIA WINE CELLARS, INC.
By:
-----------------------------------
BARTON INCORPORATED
By:
-----------------------------------
BARTON BRANDS, LTD.
By:
-----------------------------------
BARTON BEERS, LTD.
By:
-----------------------------------
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<PAGE>
BARTON BRANDS OF CALIFORNIA, INC.
By:
-----------------------------------
BARTON BRANDS OF GEORGIA, INC.
By:
-----------------------------------
BARTON DISTILLERS IMPORT CORP.
By:
-----------------------------------
BARTON FINANCIAL CORPORATION
By:
-----------------------------------
STEVENS POINT BEVERAGE CO.
By:
-----------------------------------
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<PAGE>
CANANDAIGUA LIMITED
By:
-----------------------------------
MONARCH IMPORT COMPANY
By:
-----------------------------------
CANANDAIGUA WINE COMPANY, INC.
By:
-----------------------------------
CANANDAIGUA EUROPE LIMITED
By:
-----------------------------------
ROBERTS TRADING CORP.
By:
-----------------------------------
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<PAGE>
POLYPHENOLICS, INC.
By:
-----------------------------------
FRANCISCAN VINEYARDS, INC.
By:
-----------------------------------
ALLBERRY, INC.
By:
-----------------------------------
CLOUD PEAK CORPORATION
By:
-----------------------------------
M.J. LEWIS CORP.
By:
-----------------------------------
C-4
<PAGE>
MT. VEEDER CORPORATION
By:
-----------------------------------
CANANDAIGUA B.V.
By:
-----------------------------------
BARTON CANADA, LTD.
By:
-----------------------------------
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<PAGE>
EXHIBIT D
FORM OF CERTIFICATE OF TRANSFER
Re: Canandaigua Brands, Inc. ("the Company")
8 1/2% Series C Senior Notes due 2009 (the "Notes")
Reference is hereby made to the Indenture, dated as of February 25,
1999 (the "Base Indenture"), among the Company, the Guarantors party thereto and
Harris Trust and Savings Bank, as trustee (the "Trustee"), as Supplemented by
Supplemental Indenture No. 3 ("Supplemental Indenture No. 3"), dated as of
August 6, 1999, among the Company, the Guarantors party thereto and the Trustee
and as further supplemented by Supplemental Indenture No. 4 ("Supplemental
Indenture No. 4" and, together with the Base Indenture and Supplemental
Indenture No. 3, the "Indenture"), among the Company, the Guarantors and the
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 a principal amount at maturity of $ _______________ (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 Book-Entry
Interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the Book-Entry 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 Book-Entry 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 Book-Entry
Interest in the Regulation S Global Note or a Definitive Note pursuant to
Regulation S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act and (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred Book-Entry Interest or Definitive
Note
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<PAGE>
will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the 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
Book-Entry Interest in the 144A 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 Book-Entry Interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) |_| such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
- or -
(b) |_| such Transfer is being effected to the Company or a
subsidiary thereof.
4. |_| Check if Transferee will take delivery of a Book-Entry
Interest in an Unrestricted Global Note or an Unrestricted Definitive Note. The
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. Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred Book-Entry Interest or
Definitive Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
____________________________________________
[Insert Name of Transferor]
By:_________________________________________
Name:
Title:
Dated:
D-2
<PAGE>
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) or (b)]
(a) |_| a Book-Entry Interest in the:
(i) |_| 144A Global Note (ISIN _____________; Common Code
________), held through Participant Account __________,
or
(ii) |_| Regulation S Global Note (ISIN _______________; Common
Code ________), held through Participant Account
__________, or
(b) |_| a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE OF (a) or (b)]
(a) |_| a Book-Entry Interest in the:
(i) |_| 144A Global Note (ISIN _______________; Common Code
________), held through Participant Account __________,
or
(ii) |_| Regulation S Global Note (ISIN ______________; Common
Code ________), held through Participant Account
__________, or
(iii) |_| Unrestricted Global Note (ISIN _________________; Common
Code ________), held through Participant Account________.
(b) |_| a Restricted Definitive Note; or
(c) |_| a Unrestricted Definitive Note.
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<PAGE>
EXHIBIT E
FORM OF CERTIFICATE OF EXCHANGE
(BETWEEN BOOK-ENTRY INTERESTS AND DEFINITIVE NOTES)
Re: Canandaigua Brands, Inc. ("the Company")
8 1/2% Series C Senior Notes due 2009 (the "Notes")
Reference is hereby made to the Indenture, dated as of February 25,
1999 (the "Base Indenture"), among the Company, the Guarantors party thereto and
Harris Trust and Savings Bank, as trustee (the "Trustee"), as Supplemented by
Supplemental Indenture No. 3 ("Supplemental Indenture No. 3"), dated as of
August 6, 1999, among the Company, the Guarantors party thereto and the Trustee
and as further supplemented by Supplemental Indenture No. 4 ("Supplemental
Indenture No. 4" and, together with the Base Indenture and Supplemental
Indenture No. 3, the "Indenture"), among the Company, the Guarantors and the
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 on Annex A hereto, in
a principal amount at maturity of $____________ (the "Exchange"). In connection
with the Exchange, the Owner hereby certifies that:
1. Exchange of Book-Entry Interests in Restricted Global Notes for
Restricted Definitive Notes or Book-Entry Interests in Restricted Global Notes
In connection with the Exchange of the Owner's Book-Entry 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.
The Owner requests that Definitive Notes be registered in the
following name:
____________________________
____________________________
and sent to the Owner at the following address:
____________________________
____________________________
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<PAGE>
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
[Insert Name of Owner]
By: _____________________________________
Name:
Title:
Dated:
E-2
<PAGE>
EXHIBIT F
[FORM OF ]
INTERCOMPANY NOTE
___________
Evidences of all loans or advances ("Loans") made hereunder shall be
reflected on the grid attached hereto. FOR VALUE RECEIVED, __________, a
__________ corporation (the "Maker"), HEREBY PROMISES TO PAY ON DEMAND to the
order of __________ (the "Holder") the principal sum of the aggregate unpaid
principal amount to all Loans (plus accrued interest thereon) at any time and
from time to time made hereunder which has not been previously paid.
Reference is hereby made to the Indenture, dated as of February 25,
1999 (the "Base Indenture"), among the Company, the Guarantors party thereto and
Harris Trust and Savings Bank, as trustee (the "Trustee"), as Supplemented by
Supplemental Indenture No. 3 ("Supplemental Indenture No. 3"), dated as of
August 6, 1999, among the Company, the Guarantors party thereto and the Trustee
and as further supplemented by Supplemental Indenture No. 4 ("Supplemental
Indenture No. 4" and, together with the Base Indenture and Supplemental
Indenture No. 3, the "Indenture"), among the Company, the Guarantors and the
Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
ARTICLE I
TERMS OF INTERCOMPANY NOTE
Section 1.01 Note Forgivable. Unless the Maker of the Loan hereunder
is either of the Company or any Guarantor, the Holder may not forgive any
amounts owing under this intercompany note.
Section 1.02 Interest: Prepayment. (a) The interest rate ("Interest
Rate") on the Loans shall be a rate per annum reflected on the grid attached
hereto.
(b) The interest, if any, payable on each of the Loans shall accrue
from the date such Loan is made and, subject to Section 2.01, shall be payable
upon demand of the Holder.
(c) If the principal or accrued interest, if any, of the Loans is
not paid on the date demand is made, interest on the unpaid principal and
interest will accrue at a rate equal to the Interest Rate, if any, plus 100
basis points per annum from maturity until the principal and interest on such
Loans are fully paid.
(d) Subject to Section 2.01, any amounts hereunder may be prepaid at
any time by the Maker.
Section 1.03 Subordination. All loans made to either of the Company
or any Guarantor shall be subordinated in right of payment to the payment and
performance of the obligations of the Company and any Subsidiary under the
Indenture, the Notes, the Guarantees or any other Indebtedness ranking pari
passu with the Notes, or any Guarantees, including, without limitation, any
Indebtedness incurred under the Credit Agreement; provided that with respect to
a Subsidiary in any specific instance, such Subsidiary is also an obligor under
the Indenture, the Notes, a Guarantee or such other senior or pari passu
Indebtedness, as the case may be, whether as a borrower, guarantor or pledgor of
collateral.
F-1
<PAGE>
ARTICLE II
EVENTS OF DEFAULT
Section 2.01 Events of Default. If after the date of issuance of
this Loan (i) an Event of Default has occurred under the Indenture, (ii) an
"Event of Default" (as defined) has occurred under the Credit Agreement, or any
refinancing of the Credit Agreement or (iii) an "event of default" (as defined)
has occurred on any other Indebtedness of the Company or any Guarantor, then (x)
in the event the Maker is not either one of the Company or a Guarantor, all
amounts owing under the Loans hereunder shall be immediately due and payable to
the Holder, and (y) in the event the Maker is either the Company or a Guarantor,
the amounts owing under the Loans hereunder shall not be due and payable;
provided, however, that if such Event of Default or event of default has been
waived, cured or rescinded, such amounts shall no longer be due and payable in
the case of clause (x), and such amounts may be payable in the case of clause
(y). If the Holder is a Subsidiary, then the Holder hereby agrees that if it
receives any payments or distributions on any Loan from the Company or a
Guarantor which is not payable pursuant to clause (y) of the prior sentence
after any Event of Default or event or default described in clauses (i), (ii) or
(iii) above has occurred, is continuing and has not been waived, cured or
rescinded, it will pay over and deliver forthwith to the Company or such
Guarantor, as the case may be, all such payments and distributions.
ARTICLE III
MISCELLANEOUS
Section 3.01 Amendments, Etc. No amendment or waiver of any
provision of this intercompany note, or consent to depart herefrom is permitted
at any time for any reason, except with the consent of the Holders of not less
than a majority in aggregate principal amount of the outstanding Notes.
Section 3.02 Assignment. No party to this Agreement may assign, in
whole or in part, any of its rights and obligations under this intercompany
note, except to its legal successor in interest.
Section 3.03 Third Party Beneficiaries. The holders of the Notes or
any other Indebtedness ranking pari passu with or senior to, the Notes or any
Guarantees, including without limitation, any Indebtedness incurred under the
Credit Agreement, shall be third party beneficiaries to this intercompany note
and shall have the right to enforce this intercompany note against the Company
or any of its Subsidiaries.
Section 3.04 Headings. Article and Section headings in this
intercompany note are included for convenience of reference only and shall not
constitute a part of this intercompany note for any other purpose.
Section 3.05 Entire Agreement. This intercompany note sets forth the
entire agreement of the parties with respect to its subject matter and
supersedes all previous understandings, written or oral, in respect thereof.
Section 3.06 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
Section 3.07 Waivers. The Maker hereby waives presentment, demand
for payment, notice of protest and all other demands and notices in connection
with the delivery, acceptance, performance or enforcement hereof.
F-2
<PAGE>
By:
--------------------------------------
Name:
Title:
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<PAGE>
BORROWINGS, MATURITIES, AND PAYMENTS OF PRINCIPAL
Amount
Amount of Maturity of Principal Unpaid
Borrowing/ Borrowing/ Paid or Principal Notation
Date Principal Principal Prepaid Balance Made By
- ----------- ----------- ------------- ----------- ----------- ------------
F-4
