As filed with the Securities and Exchange Commission on January 10, 2000
Registration No. ____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
DELAWARE CANANDAIGUA BRANDS, INC. 16-0716709 2084
AND ITS SUBSIDIARY GUARANTORS:
NEW YORK BATAVIA WINE CELLARS, INC. 16-1222994 2084
NEW YORK CANANDAIGUA WINE COMPANY, INC. 16-1462887 2084
NEW YORK CANANDAIGUA EUROPE LIMITED 16-1195581 5182
NEW YORK ROBERTS TRADING CORP. 16-0865491 4212
NEW YORK POLYPHENOLICS, INC. 16-1546354 2834
ENGLAND AND WALES CANANDAIGUA LIMITED 98-0198402 6719
NETHERLANDS CANANDAIGUA B.V. 98-0205132 6159
CALIFORNIA SIMI WINERY, INC. 94-2244918 2084
NEW YORK SCV-EPI VINEYARDS, INC. 16-1568478 0172
DELAWARE FRANCISCAN VINEYARDS, INC. 94-2602962 2084
CALIFORNIA ALLBERRY, INC. 68-0324763 2084
CALIFORNIA CLOUD PEAK CORPORATION 68-0324762 2084
CALIFORNIA M.J. LEWIS CORP. 94-3065450 2084
CALIFORNIA MT. VEEDER CORPORATION 94-2862667 2084
DELAWARE BARTON INCORPORATED 36-3500366 5181
DELAWARE BARTON BRANDS, LTD. 36-3185921 2085
MARYLAND BARTON BEERS, LTD. 36-2855879 5181
CONNECTICUT BARTON BRANDS OF CALIFORNIA, INC. 06-1048198 5182
GEORGIA BARTON BRANDS OF GEORGIA, INC. 58-1215938 2085
NEW YORK BARTON DISTILLERS IMPORT CORP. 13-1794441 5182
DELAWARE BARTON FINANCIAL CORPORATION 51-0311795 6153
ILLINOIS BARTON CANADA, LTD. 36-4283446 6794
WISCONSIN STEVENS POINT BEVERAGE CO. 39-0638900 2082
ILLINOIS MONARCH IMPORT COMPANY 36-3539106 5181
GEORGIA THE VIKING DISTILLERY, INC. 58-2183528 2085
(State or other (Exact name of registrant (I.R.S. (Primary
jurisdiction of as specified in its charter) Employer Standard
incorporation Identification Industrial
or organization) No.) Classification
Code Number)
300 WILLOWBROOK OFFICE PARK
FAIRPORT, NEW YORK 14450
716-218-2169
(Address, including zip code, and telephone number, including area code, of
registrants' principal executive offices)
ROBERT SANDS, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
CANANDAIGUA BRANDS, INC.
300 WILLOWBROOK OFFICE PARK
FAIRPORT, NEW YORK 14450
716-218-2169
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
<PAGE>
---------------------------
COPY TO:
BERNARD S. KRAMER, ESQ.
MCDERMOTT, WILL & EMERY
227 WEST MONROE STREET
CHICAGO, ILLINOIS 60606-5096
---------------------------
Approximate date of commencement of proposed sale of securities to the
public: As soon as practicable after the effective date of this registration
statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. /_/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. /_/
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. /_/
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Title of each class of Amount to be Proposed maximum offering Proposed maximum Amount of
securities to be registered registered price per note aggregate offering price(1) registration fee(2)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
8 1/2% Series B Senior Notes (pound)75,000,000 100% $123,562,500 $32,620
- ------------------------------------------------------------------------------------------------------------------------------------
Guarantees of the 8 1/2%
Series B Senior Notes (3) (3) (3) (3)
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(f).
(2) Calculation uses an exchange rate of (pound)1.00 = $1.6475 being the noon
buying rate on January 6, 2000.
(3) No separate consideration will be received for the Guarantees. Pursuant to
Rule 457(n) under the Securities Act, no separate fee is payable for the
Guarantees.
</TABLE>
---------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY DETERMINE.
<PAGE>
PROSPECTUS
SUBJECT TO COMPLETION, DATED JANUARY 10, 2000
[CANANDAIGUA LOGO]
CANANDAIGUA BRANDS, INC.
OFFER TO EXCHANGE
8 1/2% SENIOR B SENIOR NOTES DUE 2009
FOR
8 1/2% SERIES NOTES DUE 2009
----------------------------------
o We are offering to exchange(pound)75,000,000 of our new 8 1/2%
Series B Senior Notes due 2009 for(pound)75,000,000 of our old
8 1/2% Senior Notes due 2009. We are offering to issue the new
notes to satisfy our obligations contained in the registration
rights agreement entered into when the old notes were sold in
transactions permitted by Rule 144A and Regulation S under the
Securities Act.
o The terms of the new notes and the old notes are substantially
identical, except for transfer restrictions, registration
rights, and liquidated damages that apply to the old notes.
o The exchange offer expires at 5:00 p.m., New York City time,
on ___________________, 2000, unless we extend it.
o The exchange of outstanding old notes for new notes will not
be a taxable event for United States federal income tax
purposes. See "U.S. Federal Income Tax Considerations" on page
49 for more information.
o We have applied to list the new notes on the Luxembourg Stock
Exchange.
SEE "RISK FACTORS" BEGINNING ON PAGE 9 FOR A DISCUSSION OF RISK
FACTORS THAT YOU SHOULD CONSIDER BEFORE DECIDING TO TENDER YOUR OLD NOTES.
---------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED
UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
---------------------
The date of this prospectus is , 2000.
<PAGE>
TABLE OF CONTENTS
PAGE
Where You Can Find More Information.........................................
Forward-Looking Statements..................................................
Prospectus Summary..........................................................
Risk Factors................................................................
The Exchange Offer..........................................................
Use of Proceeds.............................................................
Capitalization..............................................................
Description of Notes........................................................
U.S. Federal Income Tax Considerations......................................
Plan of Distribution........................................................
Legal Matters...............................................................
Experts.....................................................................
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy reports, statements or
other information at the SEC's public reference rooms at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and its regional offices at 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, New York, New York
10048. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Our SEC filings are also available to the public from
commercial document retrieval services, at the web site maintained by the SEC at
"http://www.sec.gov", and at our own web site at "http://www.cbrands.com". If
the new notes are listed on the Luxembourg Stock Exchange, copies of our
reports, proxy statements and other information will also be made available free
of charge at the office of our agent, Paribas Luxembourg, in Luxembourg.
We have filed with the SEC a registration statement on Form S-4
to register the securities. This prospectus is part of that registration
statement and, as permitted by the SEC's rules, does not contain all the
information set forth in the registration statement. For further information you
may refer to the registration statement and to the exhibits and schedules filed
as part of the registration statement. You can review and copy the registration
statement and its exhibits and schedules at the SEC's public reference rooms as
described above. The registration statement, including its exhibits and
schedules, is also available on SEC's web site.
The SEC allows us to "incorporate by reference" the information
we file with it, which means that we can disclose important business and
financial information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus, and the information that we file with the SEC later will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any filings that we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
subsequent to the date of this prospectus and prior to the expiration of the
exchange offer:
o Annual Report on Form 10-K for the fiscal year ended February
28, 1999;
o Quarterly Reports on Form 10-Q for the quarterly periods ended
May 31, 1999 and August 31, 1999; and
o Current Reports on Form 8-K filed on March 3, 1999, April 13,
1999, April 15, 1999, April 23, 1999, April 26, 1999, June 9,
1999, June 21, 1999, June 23, 1999, August 4, 1999, September
27, 1999 October 13, 1999, and January 4, 2000, and on Form
8-K/A filed on June 25, 1999 and November 23, 1999.
This prospectus incorporates important business and financial
information about the Company and the guarantors of the new notes that is not
included in or delivered with this prospectus. You may request a copy of this
information and any of the filings identified above, at no cost, by writing or
telephoning us at: Canandaigua Brands, Inc., Attention: David S. Sorce,
Secretary, 300 WillowBrook Office Park, Fairport, New York 14450; telephone
number 716-218-2169. TO ENSURE TIMELY DELIVERY OF ANY DOCUMENTS YOU REQUEST, YOU
SHOULD MAKE YOUR REQUEST NO LATER THAN ____________, 2000 (FIVE DAYS PRIOR TO
THE EXPIRATION DATE OF THE EXCHANGE OFFER). In addition, copies of those
documents will also be made available free of charge at the office of our agent
in Luxembourg.
YOU SHOULD RELY ONLY ON THE INFORMATION INCORPORATED BY REFERENCE
OR PROVIDED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT
AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT OR ADDITIONAL INFORMATION.
YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY SUPPLEMENT
IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THOSE DOCUMENTS.
---------------------
FORWARD-LOOKING STATEMENTS
This prospectus contains "forward-looking statements" within the
meaning of Section 27A of the Securities Act and Section 21E of the Securities
Exchange Act of 1934. These forward-looking statements are subject to a number
of risks and uncertainties, many of which are beyond our control. All statements
other than statements of historical facts included in this prospectus, including
the statements under "Prospectus Summary," regarding our business strategy,
future operations, financial position, estimated revenues, projected costs,
prospects, plans and objectives of management, as well as information concerning
expected actions of third parties are forward-looking statements. When used in
this prospectus, the words "anticipate," "intend," "estimate," "expect,"
"project" and similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain such identifying
words. All forward-looking statements speak only as of the date of this
prospectus. We do not undertake any obligation to update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise. Although we believe that the expectations reflected in the
forward-looking statements are reasonable, we can give no assurance that such
expectations will prove to be correct. Important factors that could cause our
actual results to differ materially from our expectations ("cautionary
statements") are disclosed under "Risk Factors" and elsewhere in this
prospectus. The cautionary statements qualify all forward-looking statements
attributable to us or persons acting on our behalf.
<PAGE>
PROSPECTUS SUMMARY
The following summary highlights selected information from this
prospectus and may not contain all the information that is important to you. We
encourage you to read this prospectus in its entirety. Unless we indicate
otherwise, the terms "Company", "we", "us" and "our" refer to Canandaigua
Brands, Inc. together with its subsidiaries. The Company is a Delaware
corporation that was incorporated on December 4, 1972. Our principal executive
offices are located at 300 WillowBrook Office Park, Fairport, New York 14450,
and our telephone number is 716-218-2169.
THE COMPANY
The Company is a leading producer and marketer of branded
beverage alcohol products in North America and the United Kingdom. According
to available industry data, we rank as the second largest supplier of wine, the
second largest importer of beer and the fourth largest supplier of distilled
spirits in the United States. Our wholly-owned British subsidiary, Matthew Clark
plc ("Matthew Clark"), is a leading producer of cider, wine and bottled water,
and a leading beverage alcohol wholesaler in the United Kingdom.
Since our founding in 1945 as a producer and marketer of wine
products, we have grown through acquisitions, new product offerings and new
distribution agreements. Since 1991 we have successfully integrated numerous
acquisitions that have diversified our product portfolio and increased our
market share, net sales and cash flow. Internal growth has been driven by
developing new products and repositioning existing brands to focus on the
fastest growing sectors of the beverage alcohol industry.
We market and sell over 180 premier branded products to more than
1,000 wholesale distributors in the United States. We also distribute our own
branded products and those of other companies to more than 16,000 customers in
the United Kingdom. We operate more than 20 production facilities throughout the
world and purchase products for resale from other producers.
<PAGE>
THE EXCHANGE OFFER
NOTES OFFERED......................... We are offering up to(pound)75,000,000
aggregate principal amount of new 8 1/2%
Series B Senior Notes due 2009.
The new 8 1/2% Series B Senior Notes
have been registered under the
Securities Act.
THE EXCHANGE OFFER.................... We are offering to issue the new notes
in exchange for a like principal amount
of your old notes. For procedures for
tendering, see "The Exchange Offer."
EXPIRATION DATE; WITHDRAWAL RIGHTS.... The exchange offer expires at, and you
may withdraw your tender of old notes at
any time before, 5:00 p.m. New York City
time (10:00 p.m. London time) on
_______, 2000 unless we extend the
expiration date.
PROCEDURES FOR TENDERING OLD NOTES.... We issued the old notes as global
securities. Two global securities were
issued, one of which was for issuances
of notes under Rule 144A of the
Securities Act, the other of which was
for issuances of notes under Regulation
S under the Securities Act.
The Rule 144A global note was deposited
with Citibank, N.A., as custodian for
the Depository Trust Company ("DTC").
Citibank, N.A. holds this global note in
the name of Cede & Co., as the nominee
of DTC. Beneficial interests in notes
issued under Rule 144A are shown on
records that the DTC maintains in
book-entry form.
The Regulation S global note was
deposited with Citibank, N.A. as common
depositary in the name of Citivic
Nominees Ltd., as nominee for Euroclear
and Cedelbank. Security entitlements
with respect to notes issued under
Regulation S are shown on records in
book-entry form that Euroclear,
Cedelbank, or your securities
intermediary maintain.
To tender old notes in the exchange
offer the registered holder (Euroclear,
Cedelbank, or DTC) must transfer your
outstanding notes in accordance with
Euroclear's, Cedelbank's, or DTC's
standard procedures for such transfer.
In lieu of delivering a letter of
transmittal to the exchange agent, a
computer-generated message, in which the
holder of the old notes acknowledges and
agrees to be bound by the letter of
transmittal, must be transmitted by
Euroclear, Cedelbank, or DTC on behalf
of a holder and received by the exchange
agent before 5:00 p.m., New York City
time (10:00 p.m.. London time), on the
expiration date.
U.S. FEDERAL INCOME TAX CONSEQUENCES.. Your exchange of old notes for new notes
in the exchange offer should not result
in any income, gain or loss to you for
United States federal income tax
purposes. See "U.S. Federal Income Tax
Considerations."
USE OF PROCEEDS....................... We will not receive any proceeds from
the exchange pursuant to the exchange
offer.
EXCHANGE AGENT........................ Citibank N.A., through its offices in
London specified in this prospectus, is
acting as the exchange agent for the
exchange offer. See "The Exchange
Offer-Exchange Agent" for the telephone
number of the offices of the exchange
agent.
<PAGE>
SUMMARY DESCRIPTION OF THE NEW NOTES
The terms of the new notes to be issued in the exchange offer and
the outstanding old notes are substantially identical, except for transfer
restrictions, registration rights, and liquidated damages that apply to the old
notes. When we refer to the term "note" or "notes", we are referring to both the
outstanding old notes and the new notes to be issued in the exchange offer.
ISSUER................................ Canandaigua Brands, Inc.
TOTAL AMOUNT OF NOTES OFFERED......... (pound)75,000,000 aggregate principal
amount of new 8 1/2% Series B Senior
Notes due 2009.
MATURITY.............................. November 15, 2009.
INTEREST PAYMENT DATES................ Semi-annually on May 15 and November 15,
commencing May 15, 2000.
SUBSIDIARY GUARANTORS................. The notes will be unconditionally
guaranteed by each of our subsidiaries
that guarantee any of our other
indebtedness or other indebtedness of
the guarantors of the notes.
RANKING............................... The notes will be senior unsecured
obligations and will rank equally with
our other unsecured and unsubordinated
indebtedness. The notes will be
effectively subordinated to our secured
indebtedness.
OPTIONAL REDEMPTION................... The notes are redeemable at any time at
a make-whole amount. See "Description of
the Notes-Optional Redemption."
CHANGE OF CONTROL..................... Upon the occurrence of a "Change of
Control," each holder of the notes will
have the right to require us to
repurchase such holder's notes at a
price equal to 101% of the principal
amount hereof, plus accrued and unpaid
interest, if any, to the date of
repurchase.
COVENANTS............................. The indenture relating to the notes will
contain various covenants, including,
but not limited to, covenants with
respect to the following matters:
o limitation on indebtedness;
o limitation on restricted payments;
o limitation on transactions with
affiliates;
o limitation on liens;
o limitation on sale of assets;
o limitation on issuances of
guarantees;
o limitation on subsidiary capital
stock;
o limitation on dividends and other
payment restrictions affecting
subsidiaries; and
o restrictions on consolidations,
mergers and the sale of assets.
ADDITIONAL AMOUNTS.................... All payments with respect to the notes
or guarantees will be made without
withholding or deduction for taxes
unless required by law, regulation or
governmental policy or the
interpretation or administration
thereof, in which case, we will, except
in certain circumstances (e.g., where a
holder has failed to provide proper
certification, such as a Form W-8,
serving as a precondition to exemption
from, or reduction in the rate of such
withholding or deduction), pay such
additional amounts as may be necessary
so that the net amount received by the
holders after such withholding or
deduction will not be less than the
amount that would have been received in
the absence of such withholding or
deduction. See "Description of the
Notes-Additional Amounts".
REDEMPTION FOR CHANGES IN
WITHHOLDING TAX..................... We may, at our option, redeem the notes
of any holder, in whole but not in part,
at a redemption price equal to 100% of
the principal amount of the notes of
such holder, plus accrued and unpaid
interest, if any, if we have then
become, or if on the next date
thereafter on which any amount will fall
due for payment under or with respect to
the notes or guarantees we will in the
absence of such redemption become,
obligated to pay any Additional Amounts
on such notes as a result of any changes
in withholding tax laws, policies,
treaties or regulations, 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 or regulations, which change or
amendment is announced or becomes
effective on or after the date the notes
are issued; provided, however, that (i)
notice shall not be given earlier than
60 days prior to the earliest date on
which we would be obligated to pay
Additional Amounts, (ii) we will be
required to consummate such redemption
within 180 days of the date on which
such Additional Amounts are payable and
(iii) if, after giving effect to such
redemption, less than a majority of the
aggregate principal amount of notes
originally issued would remain
outstanding, we will be required to make
an offer to purchase the remaining notes
at a purchase price equal to 100% of the
aggregate principal amount thereof, plus
accrued and unpaid interest, if any, to
the date of redemption. See "Description
of the Notes-Redemption for Changes in
Withholding Tax."
LISTING............................... We have applied to list the new notes on
the Luxembourg Stock Exchange.
GOVERNING LAW......................... The notes and the indenture will be
governed by the laws of the State of New
York.
TRUSTEE............................... Harris Trust and Savings Bank, Chicago.
PRINCIPAL PAYING AGENT, TRANSFER AGENT,
AND REGISTRAR........................ Citibank, N.A, London.
PAYING AGENT, TRANSFER AGENT, AND
LISTING AGENT IN LUXEMBOURG.......... Paribas Luxembourg.
BOOK-ENTRY TRANSFER FACILITIES........ Euroclear and Cedelbank, as appropriate.
RISK FACTORS
You should carefully consider all of the information set forth in
this prospectus and, in particular, should evaluate the specific factors under
"Risk Factors" beginning on page 9 before tendering your old notes in the
exchange offer.
<PAGE>
SELECTED FINANCIAL DATA
The following table sets forth selected financial data of the
Company for each of the three fiscal years in the period ended February 28,
1999, for the six month period ended February 29, 1996, for each of the two
fiscal years in the period ended August 31, 1995 and for each of the six month
periods ended August 31, 1998 and 1999. The statement of income data for the
three fiscal years ended February 28, 1999, the six month period ended February
29, 1996, and the two fiscal years ended August 31, 1995 is derived from our
audited historical financial statements incorporated by reference into this
prospectus, which financial statements have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports thereon. The
statement of income data for the six-month periods ended August 31, 1998 and
1999 has been derived from our unaudited financial statements incorporated by
reference into this prospectus. The summary financial data below reflect results
of Matthew Clark since its acquisition on December 1, 1998, results of several
well known Canadian whisky brands, including Black Velvet and related assets
since their acquisition from Diageo Inc. and certain of its affiliates on April
9, 1999, and the results of Franciscan Vineyards, Inc. and Simi Winery, Inc.
since their acquisition on June 4, 1999. During January 1996, the Board of
Directors of the Company changed the Company's fiscal year end from August 31 to
the last day of February.
In the opinion of our management, the unaudited data includes all
adjustments (consisting of only normal recurring adjustments) necessary to
present fairly the data for such periods. Interim results are not necessarily
indicative of results that can be expected in future periods. It is important
that you read the selected financial data presented below in conjunction with
the historical financial statements and unaudited pro forma financial data
included in reports we have filed with the SEC that are incorporated by
reference into this prospectus. See "Where You Can Find More Information."
<TABLE>
<CAPTION>
FOR THE SIX
MONTHS
FOR THE SIX MONTHS ENDED FOR THE YEARS
ENDED AUGUST 31, FOR THE YEARS ENDED FEBRUARY 28, FEBRUARY 29 ENDED AUGUST 31,
------------------------ ------------------------------------- ----------- ------------------------
1999 1998 1999 1998 1997 1996 1995 1994
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
(UNAUDITED) (UNAUDITED)
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Gross sales $ 1,519,834 $ 880,150 $ 1,984,801 $ 1,632,357 $ 1,534,452 $ 738,415 $ 1,185,074 $ 861,059
Less-excise taxes (368,085) (217,836) (487,458) (419,569) (399,439) (203,391) (278,530) (231,475)
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Net sales 1,151,749 662,314 1,497,343 1,212,788 1,135,013 535,024 906,544 629,584
Cost of product sold (806,499) (467,017) (1,049,309) (869,038) (812,812) (389,281) (657,883) (458,311)
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Gross profit 345,250 195,297 448,034 343,750 322,201 145,743 248,661 171,273
Selling, general and
administrative expenses (235,821) (128,786) (299,526) (231,680) (208,991) (112,411) (159,196) (121,388)
Nonrecurring charges (5,510) -- (2,616) -- -- (2,404) (2,238) (24,005)
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Operating income 103,919 66,511 145,892 112,070 113,210 30,928 87,227 25,880
Interest expense, net (50,675) (15,952) (41,462) (32,189) (34,050) (17,298) (24,601) (18,056)
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Income before taxes and
extraordinary item 53,244 50,559 104,430 79,881 79,160 13,630 62,626 7,824
Provision for income taxes (21,297) (20,729) (42,521) (32,751) (32,977) (6,221) (24,008) (2,640)
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Income before
extraordinary item 31,947 29,830 61,909 47,130 46,183 7,409 38,618 5,184
Extraordinary item, net of
income taxes -- -- (11,437) -- -- -- -- --
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Net income $ 31,947 $ 29,830 $ 50,472 $ 47,130 $ 46,183 $ 7,409 $ 38,618 $ 5,184
=========== =========== =========== =========== =========== =========== =========== ===========
Earnings per common share:
Basic:
Income before
extraordinary item $ 1.78 $ 1.60 $ 3.38 $ 2.52 $ 2.39 $ 0.38 $ 2.06 $ 0.34
Extraordinary item -- -- (0.62) -- -- -- -- --
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Earnings per common
share - basic $ 1.78 $ 1.60 $ 2.76 $ 2.52 $ 2.39 $ 0.38 $ 2.06 $ 0.34
=========== =========== =========== =========== =========== =========== =========== ===========
Diluted:
Income before
extraordinary item $ 1.73 $ 1.56 $ 3.30 $ 2.47 $ 2.37 $ 0.37 $ 2.03 $ 0.33
Extraordinary item -- -- (0.61) -- -- -- -- --
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
Earnings per common
share - diluted $ 1.73 $ 1.56 $ 2.69 $ 2.47 $ 2.37 $ 0.37 $ 2.03 $ 0.33
=========== =========== =========== =========== =========== =========== =========== ===========
Total assets $ 2,380,288 $ 1,065,851 $ 1,793,776 $ 1,090,555 $ 1,043,281 $ 1,045,590 $ 770,004 $ 814,718
=========== =========== =========== =========== =========== =========== =========== ===========
Long-term debt $ 1,274,295 $ 297,407 $ 831,689 $ 309,218 $ 338,884 $ 327,616 $ 198,859 $ 289,122
=========== =========== =========== =========== =========== =========== =========== ===========
Ratio of earnings to fixed
charges(1)(2) 2.0x 3.8x 3.2x 3.2x 3.1x 1.7x 3.3x 1.4x
=========== =========== =========== =========== =========== =========== =========== ===========
(1) For the purpose of calculating the ratio of earnings to fixed charges,
"earnings" represent income before provision for income taxes plus fixed
charges. "Fixed charges" consist of interest expensed and capitalized,
amortization of debt issuance costs, amortization of discount on debt, and the
portion of rental expense which management believes is representative of the
interest component of lease expense.
(2) The ratio of earnings to combined fixed charges and preferred stock dividend
requirements is the same as the ratio of earnings to fixed charges.
</TABLE>
<PAGE>
RISK FACTORS
You should consider carefully all of the information in this
prospectus and incorporated by reference in this prospectus. In particular, you
should carefully evaluate the following risks before tendering your old notes in
the exchange offer. However, the risk factors set forth below, other than the
first risk factor, are also generally applicable to the old notes as well as the
new notes.
IF YOU DO NOT EXCHANGE YOUR OLD NOTES FOR NEW NOTES, YOU WILL CONTINUE TO HOLD
NOTES SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND WHICH ARE NOT FREELY
TRANSFERABLE
If you do not tender your old notes or you tender your old notes
and we do not accept the tender, your old notes will continue to be subject to
their existing restrictions on transfer and exchange. In general, unless the old
notes are registered under the Securities Act, you cannot offer or sell your old
notes except pursuant to an exemption from, or in a transaction not subject to,
the Securities Act and applicable state securities laws. Except in limited
circumstances which we summarize under "The Exchange Offer-Purpose and Effect of
the Exchange Offer" in this prospectus, we do not have any obligation to
register your old notes under the Securities Act. We do not expect that we will
take any action to register the old notes under the Securities Act unless we are
required to do so in those limited circumstances.
OUR INDEBTEDNESS COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR FINANCIAL HEALTH
AND OUR ABILITY TO FULFILL OUR OBLIGATIONS UNDER THE NOTES
We have incurred substantial indebtedness to finance our
acquisitions and we may incur substantial additional indebtedness in the future
to finance further acquisitions. As of August 31, 1999, giving pro forma effect
to sale of the old notes, we would have had approximately $1.4 billion of
indebtedness outstanding, which does not include approximately $212 million of
revolving loans we had available to draw under our bank credit facility. Our
ability to satisfy our financial obligations under our indebtedness outstanding
from time to time will depend upon our future operating performance, which is
subject to prevailing economic conditions, levels of interest rates and
financial, business and other factors, many of which are beyond our control.
Therefore, there can be no assurance that our cash flow from operations will be
sufficient to meet all of our debt service requirements and to fund our capital
expenditure requirements.
Our current and future debt service obligations and covenants
could have important consequences to you if you purchase the notes offered by
this prospectus. Such obligations and covenants include the following:
o Our ability to obtain financing for future working capital needs
or acquisitions or other purposes may be limited;
o A significant portion of our cash flow from operations will be
dedicated to the payment of principal and interest on our
indebtedness, thereby reducing funds available for operations;
o We are subject to restrictive covenants that could limit our
ability to conduct our business; and
o We may be more vulnerable to adverse economic conditions than
less leveraged competitors and, thus, may be limited in our
ability to withstand competitive pressures.
The restrictive covenants included in our bank credit facility,
our current indentures and the indenture under which the notes will be issued
include, among others, those restricting additional liens, additional borrowing,
the sale of assets, the payment of dividends, transactions with affiliates, the
making of investments and certain other fundamental changes. The bank credit
facility also contains restrictions on acquisitions and certain financial ratio
tests including a debt coverage ratio, a senior debt coverage ratio, a fixed
charges ratio and an interest coverage ratio. These restrictions could limit our
ability to conduct business. A failure to comply with the obligations contained
in the bank credit facility, our current indentures or the indenture under which
the new notes will be issued could result in an event of default under such
agreements, which could require us to immediately repay the related debt and
also debt under other agreements that may contain cross-acceleration or
cross-default provisions.
THE NOTES ARE UNSECURED; THE STOCK OF SOME OF OUR SUBSIDIARIES IS PLEDGED TO
SECURE OUR BANK CREDIT FACILITY
The notes will not be secured by any of our assets. Our
obligations under our bank credit facility, however, are secured by (i) first
priority pledges of 100% of the capital stock of Canandaigua Limited and all of
our domestic operating subsidiaries and (ii) first priority pledges of 65% of
the capital stock held by us of Matthew Clark, B.B. Servicios, S.A. de C.V.,
Canandaigua World Sales Limited and Schenley Distilleries Inc./Les Distilleries
Schenley Inc. If the Company becomes insolvent or is liquidated, or if payment
under our bank credit facility is accelerated, the lenders under the facility
would be entitled to exercise the remedies available to a secured lender under
applicable law and pursuant to the agreement governing such indebtedness. In any
such event, because the notes will not be secured by any of our assets, it is
possible that there would be no assets remaining from which claims of the
holders of the notes could be satisfied or, if any such assets remained, such
assets might be insufficient to satisfy such claims fully. See "Description of
the Senior Credit Facilities."
OUR ABILITY TO MAKE PAYMENTS ON THE NOTES DEPENDS ON OUR ABILITY TO RECEIVE
DIVIDENDS FROM OUR SUBSIDIARIES; MATTHEW CLARK IS NOT A GUARANTOR OF THE NOTES
We are a holding company and conduct almost all of our operations
through our subsidiaries. As of August 31, 1999, approximately 88% of our
tangible assets were held by our subsidiaries. The capital stock of our
subsidiaries represents substantially all the assets of the holding company.
Accordingly, we are dependent on the cash flows of our subsidiaries to meet our
obligations, including the payment of the principal and interest on the notes.
The notes are expected to be guaranteed, jointly and severally,
by each of our subsidiaries that guarantee any of our other indebtedness or
other indebtedness of the guarantors of the notes. Holders of the notes will not
have a direct claim on assets of subsidiaries that do not guarantee the notes
(including, most significantly, the assets of Matthew Clark). For the year ended
February 28, 1999 (giving pro forma effect to the acquisitions of Matthew Clark,
the Black Velvet Assets, Franciscan and Simi, as if each had occurred on March
1, 1998) approximately $679 million of our net sales were from operations of
Matthew Clark, which is not a guarantor of the notes, and approximately $1.5
billion from our operations and the operations of the guarantors. Under U.S.
bankruptcy law and comparable provisions of state fraudulent transfer laws, a
court could subordinate or void any guarantee if it found that the guarantee was
incurred with actual intent to hinder, delay or defraud creditors or the
guarantor did not receive fair consideration or reasonably equivalent value for
the guarantee and the guarantor was any of the following: (i) insolvent or was
rendered insolvent because of the guarantee; (ii) engaged in a business or
transaction for which its remaining assets constituted unreasonably small
capital; or (iii) intended to incur, or believed that it would incur, debts
beyond its ability to pay at maturity. To the extent any guarantee were to be
voided as a fraudulent conveyance or held unenforceable for any other reason,
holders of the notes would cease to have any claim in respect of such guarantor
and would be solely our creditors and any guarantor whose guarantee was not
voided or held unenforceable. In such event, the claims of the holders of the
notes against the issuer of an invalid guarantee would be subject to the prior
payment of all liabilities of such guarantor. There can be no assurance that,
after providing for all prior claims, there would be sufficient assets to
satisfy the claims of the holders of the notes relating to any voided guarantee.
Based upon financial and other information currently available to
us, we believe that the notes and the guarantees are being incurred for proper
purposes and in good faith and that we and each guarantor is solvent and will
continue to be solvent after issuing the notes or its guarantee, as the case may
be, will have sufficient capital for carrying on its business after such
issuance and will be able to pay its debts as they mature. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations-Financial Liquidity and Capital Resources," "Description of the
Senior Credit Facilities" and "Description of the Notes."
WE MAY NOT BE ABLE TO PURCHASE THE NOTES IN THE EVENT OF A CHANGE OF CONTROL
Upon the occurrence of certain specific kinds of change of
control events, we will be required to make an offer to repurchase the notes at
101% of their principal amount plus accrued interest and we will be required to
repay our senior secured credit facility in full. However, it is possible that
we will not have sufficient funds at the time of the change of control to make
the required repurchase of notes or to repay our senior secured credit facility.
Even if we did have sufficient funds to carry out such a repurchase, the
financial effect of the repurchase could cause us to default on our other
indebtedness. See "Description of the Notes-Certain Covenants-Purchase of Notes
Upon a Change of Control."
OUR ACQUISITION STRATEGY MAY NOT BE SUCCESSFUL
We have recently made a number of acquisitions and anticipate
that we may, from time to time, acquire additional businesses, assets or
securities of companies which we believe would provide a strategic fit with our
business. Any other acquired business will need to be integrated with our
existing operations. There can be no assurance that we will effectively
assimilate the business or product offerings of acquired companies into our
business or product offerings. Any acquisitions also will be accompanied by
risks such as potential exposure to unknown liabilities of acquired companies,
the difficulty and expense of integrating the operations and personnel of the
acquired companies, the potential disruption to our business, the diversion of
management time and attention, the impairment of relationships with and the
possible loss of key employees and customers of the acquired business, the
incurrence of amortization expenses if any acquisition is accounted for as a
purchase. Our failure to adequately manage the risks associated with any
acquisitions could have a material adverse effect on our financial condition or
results of operations.
THE TERMINATION OR NON-RENEWAL OF IMPORTED BEER DISTRIBUTION AGREEMENTS COULD
HAVE A MATERIAL ADVERSE EFFECT ON OUR BUSINESS
All of our imported beer products are marketed and sold pursuant
to exclusive distribution agreements with the suppliers of these products which
are subject to renewal from time to time. Our exclusive agreement to distribute
Corona and its other Mexican beer brands in 25 primarily Western states expires
in December 2006 and, subject to compliance with certain performance criteria,
continued retention of personnel and other terms of the agreement, will be
automatically renewed for additional terms of five years. Changes in control of
our company or our subsidiaries involved in importing the Mexican beer brands,
or changes in the chief executive officer of such subsidiaries, may be a basis
for the supplier, unless it consents to such changes, to terminate the
agreement. The supplier's consent to such changes may not be unreasonably
withheld. Prior to their expiration, these agreements may be terminated if we
fail to meet certain performance criteria. We believe that we are currently in
compliance with all of our material imported beer distribution agreements. From
time to time we have failed, and may in the future fail, to satisfy certain
performance criteria in our distribution agreements. It is possible that our
beer distribution agreements may not be renewed or may be terminated prior to
expiration.
OUR BUSINESS COULD BE ADVERSELY AFFECTED BY A GENERAL DECLINE IN THE CONSUMPTION
OF PRODUCTS WE SELL
In the United States the overall per capita consumption of
beverage alcohol products by adults (ages 21 and over) has declined
substantially over the past twenty years. These declines have been caused by a
variety of factors including:
o increased concern about the health consequences of consuming
beverage alcohol products and about drinking and driving;
o a trend toward a healthier diet including lighter, lower calorie
beverages such as diet soft drinks, juices and sparkling water
products;
o the increased activity of anti-alcohol consumer groups;
o an increase in the minimum drinking age from 18 to 21 in various
states; and
o increased federal and state excise taxes.
LACK OF PUBLIC MARKET FOR THE NOTES
The notes will be new securities for which there currently is no
established trading market. Although we have applied for listing of the old
notes and new notes on the Luxembourg Stock Exchange, there can be no assurance
regarding the future development of a market for the notes or the ability of
holders of the notes to sell their notes or the price at which such holders may
be able to sell their notes. If such a market were to develop, the notes could
trade at prices that may be higher or lower than the initial offering price
depending on many factors, including prevailing interest rates, our operating
results and the market for similar securities. Therefore, thee can be no
assurance as to the liquidity of any trading market for the notes or that an
active public market for the notes will develop. See the section entitled "Plan
of Distribution."
INCREASE IN EXCISE TAXES AND GOVERNMENT RESTRICTIONS COULD HAVE A MATERIAL
ADVERSE EFFECT ON OUR BUSINESS
In the United States, the federal government and individual
states impose excise taxes on beverage alcohol products in varying amounts which
have been subject to change. Increases in excise taxes on beverage alcohol
products, if enacted, could materially and adversely affect our financial
condition or results of operations. In addition, the beverage alcohol products
industry is subject to extensive regulation by state and federal agencies. The
federal Bureau of Alcohol, Tobacco and Firearms and the various state liquor
authorities regulate such matters as licensing requirements, trade and pricing
practices, permitted and required labeling, advertising and relations with
wholesalers and retailers. In recent years, federal and state regulators have
required warning labels and signage. In the United Kingdom, Matthew Clark
carries on its excise trade under a Customs and Excise License. Licenses are
required for all premises where wine is produced. Matthew Clark holds a license
to act as an excise warehouse operator and registrations have been secured for
the production of cider and bottled water. New or revised regulations or
increased licensing fees and requirements could have a material adverse effect
on our financial condition or results of operations.
WE RELY ON THE PERFORMANCE OF WHOLESALE DISTRIBUTORS FOR THE SUCCESS OF OUR
BUSINESS
In the United States, we sell our products principally to
wholesalers for resale to retail outlets including grocery stores, package
liquor stores, club and discount stores and restaurants. The replacement or poor
performance of our major wholesalers or our inability to collect accounts
receivable from our major wholesalers could materially and adversely affect our
results of operations and financial condition. Distribution channels for
beverage alcohol products have been characterized in recent years by rapid
change, including consolidations of certain wholesalers. In addition,
wholesalers and retailers of our products offer products which compete directly
with our products for retail shelf space and consumer purchases. Accordingly,
there is a risk that these wholesalers or retailers may give higher priority to
products of our competitors. In the future, our wholesalers and retailers may
not continue to purchase our products or provide our products with adequate
levels of promotional support.
WE GENERALLY DO NOT HAVE LONG-TERM SUPPLY CONTRACTS AND WE ARE SUBJECT TO
SUBSTANTIAL PRICE FLUCTUATIONS FOR GRAPES AND GRAPE-RELATED MATERIALS; WE HAVE A
LIMITED GROUP OF SUPPLIERS OF GLASS BOTTLES
Our business is heavily dependent upon raw materials, such as
grapes, grape juice concentrate, grains, and alcohol from third-party suppliers,
tequila from Mexico and packaging materials. We could experience raw material
supply, production or shipment difficulties which could adversely affect our
ability to supply goods to our customers. We are also directly affected by
increases in the costs of such raw materials. In the recent past we have
experienced dramatic increases in the cost of grapes. Although we believe we
have adequate sources of grape supplies, in the event demand for certain wine
products exceeds expectations, we could experience shortages. In addition, one
of our largest components of cost of goods sold is that of glass bottles, which
have only a small number of producers. The inability of any of our glass bottle
suppliers to satisfy our requirements could adversely affect our business.
COMPETITION COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR BUSINESS
We are in a highly competitive industry and the dollar amount,
and unit volume, of our sales could be negatively affected by our inability to
maintain or increase prices, changes in geographic or product mix, a general
decline in beverage alcohol consumption or the decision of our wholesale
customers, retailers or consumers to purchase competitive products instead of
our products. Wholesaler, retailer and consumer purchasing decisions are
influenced by, among other things, the perceived absolute or relative overall
value of our products, including their quality or pricing, compared to
competitive products. Unit volume and dollar sales could also be affected by
pricing, purchasing, financing, operational, advertising or promotional
decisions made by wholesalers and retailers which could affect their supply of,
or consumer demand for, our products. We could also experience higher than
expected selling, general and administrative expenses if we find it necessary to
increase the number of our personnel or our advertising or promotional
expenditures to maintain our competitive position or for other reasons.
WE ARE CONTROLLED BY THE SANDS FAMILY
Our outstanding capital stock consists of Class A Common Stock
and Class B Common Stock. Holders of Class A Common Stock are entitled to one
vote per share and are entitled, as a class, to elect one fourth of the members
of the Board of Directors. Holders of Class B Common Stock are entitled to 10
votes per share and are entitled, as a class, to elect the remaining directors.
As of August 31, 1999, the Sands family beneficially owned approximately 13% of
the outstanding shares of Class A Common Stock (exclusive of shares of Class A
Common Stock issuable pursuant to the conversion feature of the Class B Common
Stock owned by the Sands family) and approximately 90% of the outstanding shares
of Class B Common Stock. On all matters other than the election of directors,
the Sands family has the ability to vote approximately 65% of the votes entitled
to be cast by holders of our outstanding capital stock, voting as a single
class. Consequently, we are essentially controlled by the Sands family and they
would generally have sufficient voting power to determine the outcome of any
corporate transaction or other matter submitted to our stockholders for
approval.
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the issuance of the old notes, we entered into
a registration rights agreement. Under the registration rights agreement, we
agreed to:
o use our reasonable best efforts to file a registration
statement with the SEC for an exchange of the new notes for
the old notes under the Securities Act and to keep such
registration statement effective until the closing of the
exchange offer;
o use our reasonable best efforts to cause the exchange offer to
be consummated within 210 days following the original issuance
of the old notes;
o keep the exchange offer open for acceptance for a period of
not less than 20 business days after the date notice thereof
is mailed to holders of the old notes, or longer if required
by applicable law; and
o accept for exchange all old notes validly tendered and not
validly withdrawn in the exchange offer in accordance with the
terms of the exchange offer registration statement and letter
of transmittal.
As soon as practicable after the exchange offer registration
statement becomes effective, we will offer eligible holders of the old notes the
opportunity to exchange their old notes for new notes registered under the
Securities Act. Holders are eligible if they are not prohibited by any law or
policy of the SEC from participating in this exchange offer. The new notes will
be substantially identical to the old notes except that the new notes will not
contain terms with respect to transfer restrictions, registration rights or
additional interest.
In the event that due to a change in current interpretations by
the SEC, we are not permitted to effect the exchange offer, it is contemplated
that we will instead file a shelf registration statement covering resales by the
holders of the old notes and will use our reasonable best efforts to cause the
shelf registration statement to become effective and to keep the shelf
registration statement effective for a maximum of two years from the closing
date, which is the date we delivered the old notes to their initial purchaser.
The description of the registration rights agreement contained in
this section is a summary only. For more information, you should review the
provisions of the registration rights agreement that we filed with the SEC as an
exhibit to the registration statement of which this prospectus is a part.
In this section entitled "The Exchange Offer," the term "holder"
means any person whose old notes are held of record by DTC, Euroclear or
Cedelbank and who wants to deliver these old notes by book-entry transfer.
TERMS OF THE EXCHANGE OFFER
The expiration date of the exchange offer is 5:00 p.m., New York
City time (10:00 p.m., London time), on ________, _________ , 2000 unless we
extend the exchange offer.
The exchange offer is not conditioned upon holders tendering a
minimum principal amount of old notes.
You do not have any appraisal or dissenters' rights in the
exchange offer. If you do not tender old notes or you tender old notes that we
do not accept, your old notes will remain outstanding. Any old notes will be
entitled to the benefits of the indenture under which they were, and the new
notes will be, issued. The old notes will not, however, be entitled to any
further registration rights under the registration rights agreement, except
under limited circumstances. See "Risk Factors-If You Do Not Exchange Your Old
Notes for New Notes, You Will Continue to Hold Notes Subject to Restrictions on
Transferability and Which Are Not Freely Transferable" for more information
regarding notes outstanding after the exchange offer.
After the expiration date, we will return to you any tendered old
notes that we did not accept for exchange.
You will not have to pay brokerage commissions or fees or
transfer taxes for exchanging your notes if you follow the instructions in the
letter of transmittal. We will pay the charges and expenses, other than those
taxes described below, in the exchange offer. See "-Fees and Expenses" below for
further information regarding fees and expenses. Neither we nor our board of
directors recommends that you tender or not tender old notes in the exchange
offer. In addition, we have not authorized anyone to make any recommendation.
You must decide whether to tender in the exchange offer and, if so, the
aggregate amount of old notes to tender.
We have the right, in accordance with applicable law, at any
time:
o to delay the acceptance of the old notes;
o to terminate the exchange offer if we determine that any of
the conditions to the exchange offer have not occurred or have
not been satisfied;
o to extend the expiration date of the exchange offer and keep
all old notes tendered other than those notes properly
withdrawn; and
o to waive any condition or amend the terms of the exchange
offer.
If we materially change the exchange offer, or if we waive a
material condition of the exchange offer, we will promptly distribute a
prospectus supplement to you disclosing the change or waiver. We also will
extend the exchange offer if required by Rule 14e-1 under the U.S. Securities
Exchange Act of 1934. If we exercise any of the rights listed above, we will
promptly give written notice of the action to the exchange agent, as described
below under "-Exchange Agent", and we will issue a release to appropriate news
agencies. In the case of an extension, an announcement will be made no later
than 9:00 a.m., New York City time, on the next business day after the
previously scheduled expiration date.
ACCEPTANCE OF OLD NOTES FOR EXCHANGE, AND ISSUANCE OF NEW NOTES
We will issue to the exchange agent new notes for old notes
tendered and accepted and not withdrawn promptly after the expiration date. The
exchange agent might not deliver the new notes to all tendering holders at the
same time. The timing of delivery depends upon when the exchange agent receives
and processes the required documents.
We will be deemed to have exchanged old notes validly tendered
and not withdrawn when we give written notice to the exchange agent of their
acceptance. The exchange agent is our agent for receiving tenders of old notes,
letters of transmittal and related documents. If for any reason, we:
o delay the acceptance or exchange of any old notes, or
o extend the exchange offer, or
o are unable to accept or exchange notes,
then the exchange agent may, on our behalf and subject to Rule 14e-1(c) under
the Exchange Act, retain tendered notes. Old notes that the exchange agent
retains may not be withdrawn, except according to the withdrawal procedures
outlined below in "Procedures for Tendering Old Notes-Withdrawal of Tenders."
In tendering old notes, you must warrant in the letter of
transmittal or in an agent's message, which is described below, that:
o you have full power and authority to tender, exchange, sell,
assign and transfer old notes;
o we will acquire good, marketable and unencumbered title to the
tendered old notes, free and clear of all liens, restrictions,
charges and other encumbrances; and
o the old notes tendered for exchange are not subject to any
adverse claims or proxies.
You also must warrant and agree that you will, upon request,
execute and deliver any additional documents that either we or the exchange
agent requests to complete the exchange, sale, assignment, and transfer of the
old notes.
PROCEDURES FOR TENDERING OLD NOTES
To tender old notes in the exchange offer, the registered holder
of the notes must transfer such old notes into the exchange agent's account in
accordance with DTC's ATOP procedures or Euroclear's or Cedelbank's standard
transfer procedures.
In lieu of delivering a letter of transmittal to the exchange
agent, a computer-generated message, in which the holder of the old notes
acknowledges and agrees to be bound by the terms of the letter of transmittal
must be transmitted by DTC, Euroclear or Cedelbank as the case may be, on behalf
of a holder and received by the exchange agent prior to 5:00 p.m., New York City
time (10:00 p.m., London time), on the expiration date.
The tender by a holder of old notes will constitute an agreement
between such holder and us in accordance with the terms and subject to the
conditions set forth herein and in the letter of transmittal.
No letter of transmittal should be sent to us.
Only a registered holder of old notes may tender old notes in the
exchange offer.
Any beneficial holder whose old notes are registered in the name
of his broker, dealer, commercial bank, trust company or other nominee and who
wishes to tender should contact such registered holder promptly and instruct
such registered holder to tender on his behalf.
DETERMINATION OF VALIDITY
All the questions as to the validity, form, eligibility, time of
receipt, acceptance and withdrawal of the tendered old notes will be determined
by us in our sole discretion, which determinations will be final and binding. We
reserve the absolute right to reject any and all old notes not validly tendered
or any old notes our acceptance of which would, in the opinion of our counsel,
be unlawful. We also reserve the absolute right to waive any irregularities or
conditions of tender as to particular old notes. Our interpretation of the terms
and conditions of the exchange offer, including the instructions in the letter
of transmittal, will be final and binding on parties. Unless waived, any defects
or irregularities in connection with tenders of old notes must be cured within
such time as we shall determine. Neither we, the exchange agent, nor any other
person shall be under any duty to give notification of defects or irregularities
with respect to tenders of old notes nor shall any of them incur any liability
for failure to give such notification. Tenders of old notes will not be deemed
to have been made until such irregularities have been cured or waived. Any old
notes received by the exchange agent that are not properly tendered and as to
which the defects or irregularities have not been cured or waived will be
returned without cost by the exchange agent to the tendering holder of such old
notes unless otherwise provided in the letter of transmittal, as soon as
practicable following the expiration date.
In addition, we reserve the right in our sole discretion to:
o purchase or make offers for any old notes that remain
outstanding subsequent to the expiration date, or to terminate
the exchange offer, and
o to the extent permitted by applicable law, purchase old notes
in the open market, in privately negotiated transactions or
otherwise.
The terms of any such purchases or offers may differ from the terms of the
exchange offer.
By tendering, each holder of old notes will represent to us that,
among other things, the new notes acquired pursuant to the exchange offer are
being obtained in the ordinary course of business of the person receiving such
new notes, whether or not such person is the holder, that neither the holder nor
any other person has an arrangement or understanding with any person to
participate in the distribution of the new notes and that neither the holder nor
any such other person is an "affiliate" of ours within the meaning of Rule 405
under the Securities Act.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of old notes may be
withdrawn at any time prior to 5:00 p.m. New York City time (10:00 p.m. London
time), on the expiration date unless previously accepted for exchange.
To withdraw a tender of old notes in the exchange offer, a notice
of withdrawal must be transmitted by DTC, Euroclear, Cedelbank, as the case may
be, and received by the exchange agent, in accordance with the standard
operating procedures of DTC, Euroclear or Cedelbank, as the case may be, on
behalf of a holder, prior to 5:00 p.m. New York City time (10:00 p.m. London
time), on the expiration date and prior to acceptance for exchange thereof by
us. Any such notice of withdrawal must:
o specify the name of the person having deposited the old notes
to be withdrawn;
o identify the old notes to be withdrawn, including the
principal amount of such old notes; and
o be signed by the depositor in the same manner as the original
signature on the letter of transmittal by which such old notes
were tendered, or be accompanied by documents of transfers
sufficient to permit the trustee with respect to the old notes
to register the transfer of such old notes into the name of
the depositor withdrawing the tender.
All questions as to the validity, form and eligibility, including
time of receipt, for such withdrawal notices will be determined by us, whose
determination shall be final and binding on all parties. Any old notes so
withdrawn will be deemed not to have been validly tendered for purposes of the
exchange offer and no exchange notes will be issued with respect thereto unless
the old notes so withdrawn are validly tendered. Any old notes which have been
tendered but which are not accepted for exchange will be returned to the holder
thereof without cost to such holder as soon as practicable after withdrawal,
rejection of tender or termination of the exchange offer. Properly withdrawn old
notes may be tendered by following one of the procedures for tendering described
above at any time prior to the expiration date.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the exchange offer, we
are not required to accept for exchange, or to issue new notes in exchange for,
any old notes and may terminate or amend the exchange offer if at any time
before the acceptance of the old notes for exchange or the exchange of the new
notes for the old notes, if (i) such acceptance or issuance would violate
applicable law or any applicable interpretation of the SEC's staff, (ii) any
action or proceeding is instituted or threatened in any court or by any
governmental agency which might materially impair the ability of the Company to
proceed with the exchange offer, or there has occurred in any existing action or
proceeding that would materially impair the ability of the Company to consummate
the exchange offer, and (iii) the Company has not obtained all governmental
approvals that it deems necessary to consummate the exchange offer.
The foregoing conditions are for our sole benefit and any of them
may be asserted by us regardless of the circumstances giving rise to such
condition or may be waived by us in whole or in part at any time and from time
to time in our sole discretion. Our failure at any time to exercise the
foregoing rights is not to be deemed a waiver of any of our rights and each of
our rights shall be deemed an ongoing right which may be asserted at any time
and from time to time.
In addition, we will not accept for exchange any old notes
tendered, and no new notes will be issued in exchange for any such old notes, if
at such time any stop order is threatened or in effect with respect to the
registration statement of which this prospectus constitutes a part or the
qualification of the indenture under the Trust Indenture Act.
EXCHANGE AGENT
Citibank, N.A. has been appointed as exchange agent for the
exchange of the old notes. Questions and requests for assistance relating to the
exchange of the old notes and requests for additional copies of this prospectus
or of the letter of transmittal should be directed to the exchange agent at
Citibank N.A. (telephone (44 171) 508-3839).
RESALES OF NEW NOTES
Based on the staff of the SEC's letters to other parties, we
believe that holders of new notes, other than broker-dealers, can offer the new
notes for resale, resell and otherwise transfer the new notes without delivering
a prospectus to prospective purchasers. However, you must acquire the new notes
in the ordinary course of business and have no intention of engaging in a
distribution of the new notes, as a "distribution" is defined by the Securities
Act. We are exchanging the old notes for new notes in reliance upon the staff of
the SEC's position, set forth in interpretive letters to third parties in other
similar transactions. We will not seek our own interpretive letter. As a result,
we cannot assure you that the staff will take the same position on this exchange
offer as it did in interpretive letters to other parties.
FEES AND EXPENSES
We will not make any payment to brokers, dealers, or others
soliciting acceptances of the exchange offer except for reimbursement of mailing
expenses.
The estimated cash expenses to be incurred in connection with the
exchange offer will be paid by the Company. Such expenses include fees and
expenses of the Exchange Agent and Trustee, accounting fees and legal fees,
among others.
TRANSFER TAXES
You will not be obligated to pay any transfer taxes in connection
with any tender of old notes for exchange, except if you instruct us to register
new notes in the name of, or request that old notes not tendered or not accepted
in the exchange offer be returned to, a person other than the registered
tendering holder, you will be responsible for the payment of any applicable
transfer tax thereon.
<PAGE>
USE OF PROCEEDS
We will not receive any cash proceeds from the exchange of old
notes for new notes in the exchange offer. We have used the net proceeds from
the sale of the old notes to repay amounts that were outstanding under our bank
credit facility.
CAPITALIZATION
The following table sets forth our unaudited capitalization (1)
as of August 31, 1999, and (2) as adjusted to reflect the 8 1/2% Senior Notes.
Since August 31, 1999, excePT for the issuance of the old notes, there has been
no material change in our capitalization.
<TABLE>
<CAPTION>
AUGUST 31, AUGUST 31, 1999
1999 (ACTUAL) (AS ADJUSTED)
------------- -------------
Dollars in millions (except share data)
<S> <C> <C>
Long term debt (including current maturities):
Revolving credit facility ...................................................... $ 75.0 $ 77.3
Term loan facility ............................................................. 690.3 570.0
8 5/8% Senior Notes due 2006 ................................................... 200.0 200.0
8 1/2% Senior Notes due 2009 ................................................... -- 120.3(a)
8 3/4% Senior Subordinated Notes due 2003 ...................................... 192.7 192.7
8 1/2% Senior Subordinated Notes due 2009 ...................................... 200.0 200.0
Other .......................................................................... 9.2 9.2
---------- ----------
Total debt .............................................................. 1,367.2 1,369.5
---------- ----------
Stockholders' equity:
Preferred Stock, $.01 par value-authorized 1,000,000 shares; issued none ....... -- --
Class A Common Stock, $.01 par value-
authorized 120,000,000 shares; issued 18,036,328 shares ................. .2 .2
Class B Convertible Common Stock, $.01 par value-
authorized 20,000,000 shares; issued 3,796,524 shares ................... -- --
Additional paid-in capital ..................................................... 242.3 242.3
Retained earnings .............................................................. 313.0 313.0
Accumulated other comprehensive income-
cumulative translation adjustment ....................................... (4.9) (4.9)
Less: Treasury stock ........................................................... (81.7) (81.7)
---------- ----------
Total stockholders' equity .............................................. 468.9 468.9
---------- ----------
Total capitalization .................................................... $ 1,836.1 $ 1,838.4
---------- ----------
- ---------
(a) Represents(pound)75.0 million converted at a rate of(pound)1.00 = $1.6037.
</TABLE>
<PAGE>
DESCRIPTION OF THE NOTES
The terms of the new notes to be issued in the exchange offer and
the outstanding old notes are substantially identical, except for transfer
restrictions, registration rights, and liquidated damages provisions that apply
to the old notes. Any old notes that remain outstanding after the exchange
offer, together with new notes issued in the exchange offer, will be treated as
a single class of securities under the Indenture for voting purposes. When we
refer to the term "note" or "notes", we are referring to both the outstanding
old notes and the new notes to be issued in the exchange offer. When we refer to
"holders" of the notes, we are referring to those persons who are the registered
holders of notes on the books of the registrar appointed under the Indenture.
The new notes will be issued under the indenture (the
"Indenture"), dated as of November 17, 1999, among the Company, certain
subsidiaries of the Company that are guaranteeing the notes (the "Guarantors"),
and Harris Trust and Savings Bank, as trustee (the "Trustee"). The Indenture is
filed as an exhibit to the registration statement of which this prospectus forms
a part. The maximum aggregate principal amount of notes that may be issued under
the Indenture is (pound)150.0 million.
The following is a summary of the material provisions of the
Indenture. It does not purport to be complete, and where reference is made to
particular provisions of the Indenture, such provisions, including the
definitions of certain terms, are qualified in their entirety by reference to
all of the provisions of the Indenture and those terms made a part of the
Indenture by the Trust Indenture Act. For definitions of certain capitalized
terms used in the following summary, see "-Certain Definitions."
GENERAL
The notes will mature on November 15, 2009 and will be unsecured
senior obligations of the Company and will rank pari passu in right of payment
to all existing and future unsecured senior Indebtedness. Each note will bear
interest at an annual rate of 8 1/2% from November 17, 1999 or from the most
recent interest payment date to which interest has been paid. Interest on the
notes will be payable semi-annually on May 15 and November 15 in each year,
commencing May 15, 2000, to the Person in whose name the note (or any
predecessor note) is registered at the close of business on the May 1 or
November 1 next preceding such interest payment date. The entire aggregate
principal amount of the notes will become due and payable upon maturity.
Payment of the notes is guaranteed unconditionally by the
Guarantors on a senior basis. The Guarantors are comprised of all of the direct
and indirect Domestic Restricted Subsidiaries of the Company and direct and
indirect Foreign Restricted Subsidiaries that in each case guarantee Other
Indebtedness. The Guarantors (except Canandaigua B.V. and M.J. Lewis Corp.) have
also guaranteed all obligations of the Company under the Credit Agreement. No
holder of any other Indebtedness of the Company will have the benefit of any
guarantees which the holders of the notes do not have.
The notes are direct, senior unsecured obligations of the Company
and rank and will rank pari passu, without any preferences among themselves,
with all other outstanding unsecured and unsubordinated indebtedness, present
and future.
PAYMENT ON NOTES; SUBSTITUTION OF CURRENCY
The euro, the currency introduced at the start of the third stage
of economic and monetary union pursuant to the treaty establishing the European
Economic Community, as amended by the Treaty on European Union, was introduced
on January 1, 1999. The United Kingdom was not a participant at that date;
however, the United Kingdom Government stated that the United Kingdom might wish
to join the single currency at a later date. If the United Kingdom adopts the
euro, it will replace pounds sterling as the legal tender in the United Kingdom
and 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 paragraph entitle
neither the Company, the Guarantors nor any holder of notes to early redemption,
rescission, notice or repudiation of the terms and conditions of the notes or
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 the Indenture.
NOTICES
Notices to holders shall, at such time as, and 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 a newspaper having a general
circulation in Luxembourg (which is expected to be the Luxemburger Wort).
Notices to holders of notes shall also be mailed by first class mail to each
holder at its address appearing in the register of holders on the appropriate
date provided herein. 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 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.
ADDITIONAL AMOUNTS
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 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 any other
jurisdiction in which any Guarantor is incorporated or of any 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 any 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. The Indenture will
further provide that, 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 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. The Indenture will provide that 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.
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 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 the Indenture or in this "Description
of the Notes" 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.
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 (as defined below), 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 (as defined
below) plus 50 basis points plus, in each case, accrued interest thereon to the
date of redemption.
As used herein:
"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.
"Comparable Gilt Issue" means the 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 Reference Gilt
Dealer Quotations, or (ii) if the Trustee obtains fewer than three such
Reference Gilt Dealer Quotations, the average of all such Quotations.
"Quotation Agent" means the Reference Gilt Dealer appointed by
the Company.
"Reference Gilt Dealer" means each of (x) J.P. Morgan Securities
Ltd., 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.
Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each holder of the notes to be
redeemed. Unless the Company defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrue on the notes or
portions thereof called for redemption.
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, if the notes are listed thereon, 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; provided,
however, that no notes of a principal amount of (pound)1,000, or less shall be
redeemed in part. Notice of redemption shall be mailed by first-class mail at
least 30 but not more than 60 days before the redemption date to each holder of
notes to be redeemed at its registered address. If any Note is to be redeemed in
part only, the notice of redemption that relates to such Note shall state the
portion of the principal amount thereof to be redeemed. A new Note in 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. On and after
the redemption date, interest will cease to accrue on notes or portions thereof
called for redemption as long as the Company has deposited with the paying agent
for the notes funds in satisfaction of the applicable redemption price pursuant
to the Indenture. Notice of optional redemption will be published in the manner
described above under "-Notices."
REDEMPTION FOR CHANGES IN WITHHOLDING TAX
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 date of
redemption, 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 or after the Issue
Date, provided, however, that, (i) no notice of 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, prior to the consummation of such Tax Redemption the Company shall
make an offer to purchase from all holders, 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;
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 or any Guarantor has or will become obligated to pay
Additional Amounts as a result of such change, amendment, administration,
application or interpretation and (ii) the Company or such Guarantor will use
reasonable efforts to cause the reduction or elimination of the obligation to
pay any such Additional Amounts.
SINKING FUND
The notes will not be entitled to the benefit of any sinking
fund.
GUARANTEES OF THE NOTES
The Indenture will provide that each of the Guarantors will
unconditionally guarantee (the "Guarantees") on a senior basis, jointly and
severally, all of the Company's obligations under the notes, including its
obligations to pay principal, premium, if any, and interest with respect to the
notes. The Guarantees will be general unsecured obligations of the Guarantors.
The Guarantors (except for Canandaigua B.V. and M.J. Lewis Corp.) have also
guaranteed all obligations of the Company under the Credit Agreement. The
obligations under the Credit Agreement are secured by (i) first priority pledges
of 100% of the capital stock of Canandaigua Limited and all of the Company's
domestic operating subsidiaries and (ii) first priority pledges of 65% of the
capital stock held by the Company of Matthew Clark, B.B. Servicios, S.A. de
C.V., Canandaigua World Sales Limited and Schenley Distilleries Inc./Les
Distelleries Schenley Inc. The obligations of each Guarantor are limited to the
maximum amount which, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to its
contribution obligations under the Indenture, will result in the obligations of
such Guarantor under its Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law. Each Guarantor that makes a
payment or distribution under a Guarantee shall be entitled to a contribution
from each other Guarantor in a pro rata amount, based on the net assets of each
Guarantor determined in accordance with GAAP.
The Company shall cause each Restricted Subsidiary issuing a
Guarantee after the Issue Date to execute and deliver to the Trustee a
supplemental indenture in form reasonably satisfactory to the Trustee pursuant
to which such Restricted Subsidiary shall become a party to the Indenture and
thereby unconditionally guarantee all of the Company's Obligations under the
notes and the Indenture on the terms set forth therein. Thereafter, such
Restricted Subsidiary shall (unless released in accordance with the terms of the
Indenture) be a Guarantor for all purposes of the Indenture.
The Indenture will provide that if the notes are defeased in
accordance with the terms of the Indenture, or if, subject to the requirements
of the first paragraph under "Consolidation, Merger, Sale of Assets" 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 the covenant described under
"Certain Covenants-Limitation on Sale of Assets" 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 the covenant described
under "Certain Covenants-Limitation on Sale of Assets" and within the time
limits specified by such covenant, then such Guarantor or the Guarantors, as the
case may be (in the event of a defeasance of the notes or a 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 the Indenture and the
notes.
Any Guarantor that is designated an Unrestricted Subsidiary
pursuant to and in accordance with "Certain Covenants-Designation of
Unrestricted Subsidiaries" below shall upon such Designation be released and
discharged of its Guarantee obligations in respect of the Indenture and the
notes and any Unrestricted Subsidiary whose Designation is revoked pursuant to
"Certain Covenants-Designation of Unrestricted Subsidiaries" below will be
required to become a Guarantor in accordance with the procedure described in the
third preceding paragraph. In the case where a Guarantor is released and
discharged of its Guarantee, we will, if listed on the Luxembourg Stock
Exchange, inform the Luxembourg Stock Exchange and holders will be notified in
accordance with the procedure described in "-Notices."
The Guarantors of the notes are the following subsidiaries of the
Company: 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., SCV-EPI Vineyards,
Inc., Simi Winery, Inc., Stevens Point Beverage Co., and The Viking Distillery,
Inc.
CERTAIN COVENANTS
The Indenture contains, among others, the following covenants:
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 billion, minus the amount
of any repayment of such Indebtedness under the Credit
Agreement pursuant to "Certain Covenants-Limitation on
Sale of Assets" below and (y) the Borrowing Base;
(ii) Indebtedness of the Company pursuant to the notes and
other Indebtedness 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 the Indenture 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 the Indenture 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 "Certain Covenants-Limitation on
Guarantees by Restricted Subsidiaries";
(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
(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.
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 described
under "Limitation on Indebtedness"; and (3) the aggregate amount of all such
Restricted Payments declared or made after the date of the 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 the date of
the Indenture 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 (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 the date of
the Indenture 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 the date of
the Indenture by the Company from debt securities or
Redeemable Capital Stock that have 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
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 the Issue Date, with respect
to any Unrestricted Subsidiary that has been redesignated
as a Restricted Subsidiary after the Issue Date in
accordance with "Certain Covenants-Designation of
Unrestricted Subsidiaries", 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 the Issue Date in accordance with "Certain
Covenants-Designation of Unrestricted Subsidiaries."
(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 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;
(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;
(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;
(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.
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).
Limitation 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 the Indenture or
acquired after the date of the 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 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 date of the Indenture;
(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 "Certain
Covenants-Limitation on Indebtedness"; 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.
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) 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 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 covenant, 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 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 the 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) 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 the 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.
(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 the 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
the 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.
Limitation on Guarantees by Restricted Subsidiaries. The
Indenture will provide that in the event the Company (i) organizes or acquires
any Domestic Restricted Subsidiary after the Issue Date 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
Indenture pursuant to which it will become a Guarantor under 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
Guarantee 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). The 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 "Certain Covenants-Limitation
on Sale of Assets" or (ii) such sale or transfer need not comply with the
provisions set forth in "Certain Covenants-Limitation on Sale of Assets" because
the 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.
Purchase of Notes Upon a Change of Control. 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 below
(the "Change of Control Offer") and the other procedures set forth in the
Indenture.
Within 15 days following any Change of Control, the Company shall
notify the Trustee thereof, give written notice of such Change of Control to
each holder of notes by first-class mail, postage prepaid, at his address
appearing in the security register and publish such notice in a leading
Luxembourg newspaper, if the Company is then listed on the Luxembourg Stock
Exchange, stating, among other things, the purchase price and that the purchase
date 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; that any Note not tendered will
continue to accrue interest; that, unless the Company defaults in the payment of
the 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; and certain other procedures that a holder of notes must follow
to accept a Change of Control Offer or to withdraw such acceptance.
If a Change of Control Offer is made, there can be no assurance
that the Company will have available funds sufficient to pay the Change of
Control Purchase Price for all of the notes that might be delivered by holders
of the notes seeking to accept the Change of Control Offer. The Credit Agreement
restricts the ability of the Company to purchase the notes prior to full
repayment of indebtedness under the Credit Agreement and, upon a Change of
Control, all amounts outstanding under the Credit Agreement become due and
payable. There can be no assurance that in the event of a Change in Control the
Company will be able to obtain the necessary consents from the lenders under the
Credit Agreement to consummate a Change of Control Offer. The failure of the
Company to make or consummate the Change of Control Offer or pay the Change of
Control Purchase Price when due will result in an Event of Default and will give
the Trustee and the holders of the notes the rights described under "Events of
Default."
The definition of "Change of Control" in the Indenture is defined
to mean 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, contract
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 662/3% 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 "Certain Covenants-Limitation on Restricted Payments"
(and such amount shall be treated as a Restricted Payment subject to the
provisions in the Indenture described under "Certain Covenants-Limitation on
Restricted Payments") 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 under
"Consolidation, Merger, Sale of Assets."
"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
persons 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.
The term "all or substantially all" as used in the definition of
"Change of Control" has not been interpreted under New York law (which is the
governing law of the Indenture) to represent a specific quantitative test. As a
consequence, in the event the holders of the notes elected to exercise their
rights under the Indenture and the Company elected to contest such election,
there could be no assurance as to how a court interpreting New York law would
interpret the phrase.
The definition of "Change of Control" is limited in scope. As a
result the provisions of the Indenture will not afford holders of notes the
right to require the Company to purchase the notes in the event of a highly
leveraged transaction or certain transactions with the Company's management or
its affiliates, including a reorganization, restructuring, merger or similar
transaction (including, in certain circumstances, an acquisition of the Company
by management or its affiliates) involving the Company that may adversely affect
holders of the notes, if such transaction is not a transaction defined as a
Change of Control. A transaction involving the Company's management or its
affiliates, or a transaction involving a recapitalization of the Company, will
result in a Change of Control if it is the type of transaction specified by such
definition.
The existence of a holder's right to require the Company to
purchase such holder's notes upon a Change of Control may deter a third party
from acquiring the Company in a transaction which constitutes a Change of
Control.
The Company will 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.
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 the
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.
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.
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
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
the Indenture; (b) any encumbrance or restriction, with respect to a Restricted
Subsidiary that is not a Restricted Subsidiary of the Company on the date of the
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 the Indenture
shall in any event be permitted); 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 "Certain Covenants-Limitation on
Sale of Assets" 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.
Designation of Unrestricted Subsidiaries. The Company may
designate after the Issue Date any Subsidiary of the Company as an "Unrestricted
Subsidiary" under 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 "Certain
Covenants-Limitation on Indebtedness"; 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 paragraph (a) of
"Certain Covenants-Limitation on Restricted
Payments" 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
(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
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.
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 the
Indenture described (x) above under the captions "Certain Covenants-Limitation
on Indebtedness," "Certain Covenants-Limitation on Restricted Payments,"
"Certain Covenants-Limitation on Transactions with Affiliates," "Certain
Covenants-Limitation on Restricted Subsidiary Capital Stock," "Certain
Covenants-Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries," and "Certain Covenants-Designation of Unrestricted
Subsidiaries," and (y) below in clause (iv) of the first paragraph under the
caption "Consolidation, Merger, Sale of Assets," will terminate and cease to
have any further effect from and after the first date when the notes are rated
Investment Grade.
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 Sections 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.
Additional Covenants. The Indenture also contains covenants with
respect to the following matters: (i) payment of principal, premium and
interest; (ii) maintenance of an office or agency in the City of New York; (iii)
arrangements regarding the handling of money held in trust; (iv) maintenance of
corporate and partnership existence; (v) payment of taxes and other claims; (vi)
maintenance of properties; and (vii) maintenance of insurance.
CONSOLIDATION, MERGER, SALE OF ASSETS
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: (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 the Indenture,
and the 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 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 the Indenture) could incur $1.00 of
additional Indebtedness under the provisions of "Certain Covenants-Limitation on
Indebtedness" (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 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 "Certain Covenants-Limitation on
Liens" 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 the Indenture and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
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 a supplemental indenture,
executed and delivered to the Trustee, in a form reasonably satisfactory to the
Trustee, all the obligations of such Guarantor under its Guarantee 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 the Indenture, and thereafter all obligations of the
predecessor shall terminate. The provisions of this paragraph shall not apply to
any transaction (including any Asset Sale made in accordance with "Certain
Covenants-Limitation on Sale of Assets") 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 "Certain Covenants-Limitation on
Guarantees by Restricted Subsidiaries" or (ii) if such transaction need not
comply with the provisions set forth in "Certain Covenants-Limitation on Sale of
Assets" 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.
In the event of any transaction (other than a lease) described in
and complying with the conditions listed in the immediately preceding paragraphs
in which the Company or any Guarantor is not the continuing corporation, the
successor Person formed or remaining 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, and the Company or such Guarantor, as the case may be, would be
discharged from all obligations and covenants under the Indenture and the notes.
EVENTS OF DEFAULT
An Event of Default will occur under the Indenture if:
(i) 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;
(ii) 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);
(iii) (a) there shall be a default in the performance, or
breach, of any covenant or agreement of the Company
or any Guarantor under the Indenture (other than a
default in the performance, or breach, of a
covenant or agreement which is specifically dealt
with in clauses (i) or (ii) or in clauses (b), (c)
and (d) of this clause (iii)) 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" under the
Indenture; (b) there shall be a default in the
performance or breach of the provisions described
in "Consolidation, Merger, Sale of Assets"; (c) the
Company shall have failed to make or consummate an
Offer in accordance with the provisions of "Certain
Covenants-Limitation on Sale of Assets," or (d) the
Company shall have failed to make or consummate a
Change of Control Offer in accordance with the
provisions of "Certain Covenants-Purchase of notes
Upon a Change of Control;"
(iv) 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;
(v) 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 the Indenture and any
such Guarantee;
(vi) 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;
(vii) 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);
(viii) there shall have been the entry by a court of
competent jurisdiction of (a) 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 (b) 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
(ix) (a) 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;
(b) 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; (c) 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; (d) the
Company, any Guarantor or any Subsidiary (x)
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,
(y) makes an assignment for the benefit of
creditors or (z) admits in writing its inability to
pay its debts generally as they become due; or (e)
the Company, any Guarantor or any Subsidiary takes
any corporate action in furtherance of any such
actions in this paragraph (ix).
If an Event of Default (other than as specified in clauses (viii)
and (ix) of the prior paragraph) 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 such holders shall, declare
all unpaid principal of, premium, if any, and accrued interest on all of 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 (viii) or (ix) of the prior paragraph 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.
After a declaration of acceleration, but before a judgment or
decree for payment of the money due has been obtained by the Trustee, the
holders of a majority in aggregate principal amount of 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 (i) all sums paid or advanced by the Trustee
under the Indenture and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, (ii) all overdue interest on
the 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 nonpayment of principal of the notes which have become
due solely by such declaration of acceleration, have been cured or waived; and
(c) the rescission will not conflict with any judgment or decree.
The holders of not less than a majority in aggregate principal
amount of the notes outstanding, may, on behalf of the holders of all the notes,
waive any past defaults under the Indenture and its consequences, except a
default in the payment of the principal of, premium, if any, or interest on any
note, or in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each series of notes
outstanding.
The Company is also required to notify the Trustee within five
business days of the occurrence of any Default.
The Trust Indenture Act contains limitations on the rights of the
Trustee, should it become a creditor of the Company or any Guarantor, to obtain
payment of claims in certain cases or to realize on certain property received by
it in respect of any such claims, as security or otherwise. The Trustee is
permitted to engage in other transactions; provided that if it acquires any
conflicting interest it must eliminate such conflict upon the occurrence of an
Event of Default or else resign.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time, elect to have its
obligations discharged with respect to the outstanding notes ("Legal
Defeasance"). Such Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by the outstanding
notes, except for: (i) the rights of holders of the notes to receive payments in
respect of the principal of, premium, if any, and interest on the notes when
such payments are due; (ii) the Company's obligations with respect to the notes
concerning issuing temporary notes, registration of notes, mutilated, destroyed,
lost or stolen notes and the maintenance of an office or agency for payments;
(iii) the rights, powers, trust duties and immunities of the Trustee and the
Company's obligations in connection therewith; and (iv) the Legal Defeasance
provisions of the Indenture. In addition, the Company may, at its option and at
any time, elect to have the obligations of the Company released with respect to
certain covenants that are described in the Indenture ("Covenant Defeasance")
and thereafter any omission to comply with such obligations shall not constitute
a Default or Event of Default with respect to the particular series of notes. In
the event Covenant Defeasance occurs, certain events (not including non-payment,
bankruptcy, receivership, reorganization and insolvency events) described under
"Events of Default" will no longer constitute an Event of Default with respect
to the particular series of notes subject to such Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant
Defeasance: (i) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the holders of the notes cash in pounds sterling,
non-callable United Kingdom Government Obligations, or a combination thereof, in
such amounts as will be sufficient, in the opinion of an internationally
recognized firm of independent public accountants, to pay the principal of,
premium, if any, and interest on the outstanding notes, on the stated date for
payment thereof; (ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee, (x) 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 the Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such opinion of counsel shall confirm that, the holders of the notes
will not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred and (y) an opinion of counsel in
the United Kingdom or a ruling of the Inland Revenue of the United Kingdom to
the effect that holders of the notes will not recognize income, gain or loss for
United Kingdom income tax or other tax purposes as a result of such termination
and will be subject to United Kingdom income tax and other tax on the same
amounts, in the same manner and at the same times as would have been the case
had such Legal Defeasance not occurred (and for purposes of such opinion, such
United Kingdom counsel shall assume that holders of the notes include holders
who are not resident in the United Kingdom); (iii) in the case of Covenant
Defeasance, the Company shall have delivered to the Trustee opinions of counsel
in the United States and counsel in 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 Covenant Defeasance 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 Covenant Defeasance had not occurred; (iv) no Default or Event of Default
shall have occurred and be continuing on the date of such deposit (other that a
Default or Event of Default with respect to the Indenture resulting from the
Incurrence of Indebtedness, all or a portion of which will be used to defease
the notes concurrently with such Incurrence); (v) such Legal Defeasance or
Covenant Defeasance shall not result in a breach or violation of, or constitute
a default under, the Indenture or any other material agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound; (vi) the Company shall have delivered 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; (vii) the
Company shall have delivered to the Trustee an officers' certificate and
opinions of counsel, each stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance have been complied
with; (viii) the Company shall have delivered 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; and (ix) certain other
customary conditions precedent specified in the Indenture are satisfied.
SATISFACTION AND DISCHARGE
The Indenture shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of the notes, as
expressly provided for in the Indenture) as to all outstanding notes when (a)
either (i) all the notes theretofore authenticated and delivered (except lost,
stolen or destroyed notes which have been replaced or paid) canceled or have
been delivered to the Trustee for cancellation or (ii) all 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
funds in an amount 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 under the Indenture by the Company or any
Guarantor; and (c) the Company has delivered to the Trustee an officers'
certificate and an opinion of counsel each stating that (i) all conditions
precedent under the Indenture relating to the satisfaction and discharge of 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, 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.
MODIFICATIONS AND AMENDMENTS
Modifications and amendments of the Indenture with respect to the
notes may be made by the Company, each Guarantor, if any, and the Trustee with
the consent of the holders of not less than a majority in aggregate outstanding
principal amount of the notes; provided, however, that no such modification or
amendment may, without the consent of the holder of each outstanding note
affected thereby: (i) 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;
(ii) 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 "Certain Covenants-Limitation on Sale of Assets" 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 "Certain Covenants-Purchase of notes Upon a
Change of Control," including amending, changing or modifying any definitions
with respect thereto; (iii) reduce the percentage in principal amount of
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; (iv) modify any of the provisions relating to supplemental indentures
requiring the consent of holders or relating to the waiver of past defaults or
relating to the waiver of certain covenants, except to increase the percentage
of outstanding notes required for such actions or to provide that certain other
provisions of the Indenture cannot be modified or waived without the consent of
the holder of each note affected thereby; (v) except as otherwise permitted
under "Consolidation, Merger, Sale of Assets," consent to the assignment or
transfer by the Company or any Guarantor of any of its rights and obligations
under the Indenture; or (vi) amend or modify any of the provisions of the
Indenture to cause the notes or any Guarantee to be subordinate to any other
Indebtedness.
The holders of not less than a majority in aggregate principal
amount of the notes outstanding may waive compliance with certain restrictive
covenants and provisions of the Indenture, as they relate to such series of
notes.
GOVERNING LAW
The 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. Under the Judiciary
Law of the State of New York, a judgment or decree in an action based upon an
obligation denominated in a currency other than United States dollars will be
rendered in the foreign currency of the underlying obligation and converted into
United States dollars at a rate of exchange prevailing on the date of entry of
the judgment or decree.
THE TRUSTEE
The Indenture will provide that, except during the continuance of
an Event of Default, the Trustee will perform only such duties as are
specifically set forth in the applicable Indenture. During the existence of an
Event of Default, the Trustee will exercise such rights and powers vested in it
by the Indenture, and use the same degree of care and skill in its exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
Each Indenture and the provisions of the Trust Indenture Act
contain certain limitations on the rights of the Trustee, should it become a
creditor of the Company, to obtain payments of claims in certain cases or to
realize on certain property received in respect of any such claim as security or
otherwise. Subject to the Trust Indenture Act, the Trustee will be permitted to
engage in other transactions; provided that if the Trustee acquires any
conflicting interest as described in the Trust Indenture Act, it must eliminate
such conflict or resign.
BOOK-ENTRY, DELIVERY AND FORM
The new notes will be issued initially in the form of
unrestricted global notes (the "Global Notes") deposited with the Paying Agent
in London, Citibank, N.A., as common depositary (in such capacity, the "Common
Depositary"), in the name of Citivic Nominees Ltd., as nominee for Euroclear and
Cedelbank. Except as described in this prospectus, beneficial interests in the
Global Notes will be shown on, and transfers thereof will be effected only
through, records maintained in book-entry form by Euroclear and Cedelbank.
DEPOSITARY PROCEDURES
Euroclear and Cedelbank. We understand as follows with respect to
Euroclear and Cedelbank: Euroclear and Cedelbank each hold securities for their
holders and facilitate the clearance and settlement of securities transactions
by electronic book-entry transfer between their respective holders, thereby
eliminating the need for physical movements of certificates and any risk from
lack of simultaneous transfers of securities. Euroclear and Cedelbank each
provide various services including safekeeping, administration, clearance and
settlement of internationally traded securities and securities lending and
borrowing. Each of Euroclear and Cedelbank can settle securities transactions in
any of more than 30 currencies, including pounds sterling. Euroclear and
Cedelbank each also deal with domestic securities markets in several countries
through established depository and custodial relationships. The respective
systems of Euroclear and Cedelbank have established an electronic bridge between
their two systems across which their respective holders may settle trades with
each other. Account holders in both Euroclear and Cedelbank are world-wide
financial institutions including underwriters, securities brokers and dealers,
banks, trust companies and clearing corporations. Indirect access to both
Euroclear and Cedelbank is available to other institutions that clear through or
maintain a custodial relationship with a holder of either system. A holder's
overall contractual relations with either Euroclear or Cedelbank are governed by
the respective rules and operating procedures of Euroclear or Cedelbank and any
applicable laws. Both Euroclear and Cedelbank act under such rules and operating
procedures only on behalf of their respective holders and have no record of or
relationship with any persons who are not direct holders.
Investors who hold accounts with Euroclear or Cedelbank may
acquire, hold and transfer security entitlements with respect to Global Notes
against Euroclear or Cedelbank and its respective property by book-entry to
accounts with Euroclear or Cedelbank, each of which has an account with the
Common Depositary and subject at all times to the procedures and requirements of
Euroclear or Cedelbank, as the case may be. "Security entitlement" means the
rights and property interests of a holder against its securities intermediary
under applicable law in or with respect to a security, including any ownership,
co-ownership, contractual or other rights. Investors who do not have accounts
with Euroclear or Cedelbank may acquire, hold and transfer security entitlements
with respect to a Global Note against the securities intermediary and its
property with which such investors hold accounts by book-entry to accounts with
such securities intermediary, which in turn may hold a security entitlement with
respect to the Global Note through Euroclear or Cedelbank. Investors electing to
acquire security entitlements with respect to a Global Note through an account
with Euroclear or Cedelbank or some other securities intermediary must follow
the settlement procedures of their securities intermediary with respect to the
settlement of new issues of securities. Security entitlements with respect to
the Global Notes to be acquired through an account with Euroclear or Cedelbank
will be credited to such account as of the settlement date against payment in
pounds sterling for value as of the settlement date. Investors electing to
acquire, hold or transfer security entitlements with respect to a Global Note
through an account with Euroclear, Cedelbank or some other securities
intermediary other than in connection with the initial distribution of the notes
must follow the settlement procedures of their securities intermediary with
respect to the settlement of secondary market transactions in securities.
Except as described below, owners of interests in the Global
Notes will not have notes registered in their names, will not receive physical
delivery of notes in certificated form and will not be considered the registered
owners or holders of notes for any purpose. So long as the Common Depositary is
the registered owner or holder of a Global Note, such party will be considered
the sole owner or holder of the notes represented by such Global Note for all
purposes under the indenture and the notes. Accordingly, each person owning a
beneficial interest in a Global Note must rely on the procedures of Euroclear
and Cedelbank, as the case may be, and their participants or holders to exercise
any rights and remedies of a holder under the Indenture. Payments of principal
and interest on the Global Notes will be made to the Common Depositary on behalf
of Euroclear and Cedelbank, as the case may be, as the registered owners
thereof.
The laws of some countries and some states in the United States
require that certain persons take physical delivery in definitive form of
securities that they own. Consequently, the ability to transfer beneficial
interests in a Global Note to such persons may be limited to that extent.
Because Euroclear and Cedelbank can act only on behalf of their respective
participants or holders, as the case may be, the ability of a person having
beneficial interests in a Global Note to pledge such interests to persons or
entities that do not participate in the relevant clearing system, or otherwise
take actions in respect of such interests, may be affected by the lack of a
physical certificate evidencing such interests.
The CUSIP for the new notes is 137219 AG 6. The ISIN number for
the new notes is US137219AG66. The new notes have been accepted for clearance by
Euroclear and Cedelbank under the common code 010585295.
PAYMENTS ON THE GLOBAL NOTES
Payments in respect of the principal of, premium, if any, and
interest on a Global Note will be made through the Paying Agent and will be
payable to the Common Depositary on behalf of Euroclear and Cedelbank each in
its capacity as the registered holder of the notes under the Indenture. Under
the terms of the indenture, the Company and the Trustee will treat the persons
in whose names the notes, including the Global Notes, are registered as the
owners thereof for the purpose of receiving such payments and for any and all
other purposes whatsoever. Consequently, none of the Company, the Trustee, or
any agent of the Company, or the Trustee has or will have any responsibility or
liability for
(1) any aspect or accuracy of the records of the relevant
clearing system, the participants therein or the holders
thereof, as the case may be, relating to payments made on
account of beneficial ownership interests in the Global
Notes, or for maintaining, supervising or reviewing any
records of such clearing system, participant or holder
relating to beneficial ownership interests in the Global
Notes, or
(2) any other matter relating to the actions and practices of
the relevant clearing system or the participants therein
or the holders thereof.
Euroclear or Cedelbank upon receipt of any such payment, will
immediately credit the accounts of their relevant participants or holders, as
the case maybe, with payments in amounts proportionate to their respective
holdings in principal amount of beneficial interests in the Global Notes, as
shown on the records of Euroclear or Cedelbank. The Company expects that
payments by such participants or holders, as the case may be, to the beneficial
owners of Global Notes will be governed by standing instructions and customary
practices and will be the responsibility of such participants or holders.
Neither the Company nor the Trustee will have responsibility or liability for
the payment of amounts owing in respect of beneficial interests in the Global
Notes held by the Common Depositary for Euroclear and Cedelbank.
TRANSFERS OF GLOBAL SECURITIES AND INTERESTS THEREIN
Unless definitive securities are issued, the Global Notes may be
transferred, in whole and not in part, only by Euroclear and Cedelbank to the
Common Depositary, as the case may be, or by the Common Depositary to Euroclear
and Cedelbank, respectively, or to another nominee or successor thereof or a
nominee of such successor.
Transfers of beneficial interests in the Global Notes will be
subject to the applicable rules and procedures of Euroclear and Cedelbank, as
the case maybe, and their respective holders and intermediaries. Any secondary
market trading activity in beneficial interests in the Global Notes is expected
to occur through the participants or holders and intermediaries, as the case may
be, of Euroclear and Cedelbank, and the securities custody accounts of investors
will be credited with their holdings against payment in same-day funds on the
settlement date.
No service charge will be made for any registration of transfer
or exchange of the notes, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Although Euroclear and Cedelbank have agreed to various
procedures to facilitate transfers of interests in the Global Notes among
participants and holders in Euroclear and Cedelbank, they are under no
obligation to perform or to continue to perform such procedures, and such
procedures may be discontinued at any time. Neither we, the Trustee, nor any
agent of ours or the Trustee will have any responsibility for the nonperformance
or misperformance (as a result of insolvency, mistake, misconduct or otherwise)
by Euroclear or Cedelbank or their respective participants, indirect
participants, holders or intermediaries of their respective obligations under
the rules and procedures governing their operations.
We understand that under existing industry practices, if we or
the Trustee requests any action of holders of notes, or if an owner of a
beneficial interest in a Global Note desires to give instructions or take an
action that a holder is entitled to give or take under the indenture, Euroclear
or Cedelbank, as the case may be, would authorize their respective participants
or holders, as the case may be, owning the relevant beneficial interest to give
instructions to take such action, and such participants or holders would
authorize indirect participants or intermediaries to give instructions or take
such action, or would otherwise act upon the instructions of such indirect
participants or intermediaries. Euroclear or Cedelbank is not required to
authorize holders to take any action.
We understand that under existing practices of Euroclear or
Cedelbank if less than all of the notes are to be redeemed at any time,
Euroclear or Cedelbank, as the case may be, will credit their participants' or
holders' accounts on a proportionate basis, with adjustments to prevent
fractions, or by lot or on such other basis as Euroclear or Cedelbank, as the
case may be, deems fair and appropriate, provided that no beneficial interests
of less than (pound)1,000, may be redeemed in part.
CERTIFICATED NOTES
Beneficial interests in a Global Note are exchangeable for
definitive notes in registered certificated form only (i) (in whole but not in
part) either Euroclear or Cedelbank 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, or
(ii) (in part) an Event of Default under the Indenture occurs and is continuing,
upon the request delivered in writing to Euroclear and/or Cedelbank, the Trustee
or the Common Depositary (iii) (in whole but not in part) at any time 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) the Common
Depositary is at any time unwilling or unable to continue as Common Depositary
and a successor depositary is not able to be appointed by the Company within 90
days.
Any certificated notes will be issued in registered form in
denominations of (pound)1,000 in nominal amount and integral multiples thereof.
In all cases, certificated notes delivered in exchange for any Global Note or
beneficial interest in the Global Notes will be registered in the names, and
issued in any approved denominations, requested by or on behalf of Euroclear or
Cedelbank, as the case may be, in accordance with their customary procedures.
The notes may not be issued in bearer form.
In the case of the issuance of certificated notes in the limited
circumstances set forth above, the holder of any such certificated note may
transfer such note by surrendering it at the offices or agencies of the Company
maintained for such purpose within the City and State of New York. Until
otherwise designated by the Company, the Company's office or agency in the City
and State of New York and London, England, respectively, will be the offices of
the Trustee maintained for such purpose. In the event of a partial transfer of a
holding of notes represented by one certificate, or partial redemption of such a
holding represented by one certificate, a new certificate shall be issued to the
transferee in respect of the part transferred or redeemed and a further new
certificate in respect of the balance of the holding not transferred or redeemed
shall be issued to the transferor, provided that no certificate in denominations
less than (pound)1,000 shall be issued. Each new certificate to be issued shall
be available for delivery within ten business days at the office of the Trustee.
The cost of preparing, printing, packaging and delivering the certificated notes
shall be borne by the Company.
The Company shall not be required to register the transfer or
exchange of certificated notes for a period of 15 days preceding
(a) the due date for any payment of principal of or interest on
the notes or
(b) the date fixed for a selection of notes to be redeemed.
Also, the Company is not required to register the transfer or
exchange of any notes selected for redemption. In the event of the transfer of
any certificated note, the Trustee may require a holder, among other things, to
furnish appropriate endorsements and transfer documents, and the Company may
require a holder to pay any taxes and fees required by law and permitted by the
indenture and the notes.
If certificated notes are issued and a holder of a certificated
note claims that the note has been lost, destroyed or wrongfully taken or if
such note is mutilated and is surrendered to the Trustee, the Company shall
issue and the Trustee shall authenticate a replacement note if the Trustee's and
the Company's requirements are met. If required by the Trustee or the Company,
an indemnity bond sufficient in the judgment of both to protect the Company, the
Trustee or any paying agent or authenticating agent appointed pursuant to the
indenture from any loss which any of them may suffer if a note is replaced must
be posted. The Company may charge for its expenses in replacing a note.
In case any such mutilated, destroyed, lost or stolen note has
become or is about to become due and payable, or is about to be redeemed or
purchased by the Company pursuant to the provisions of the Indenture, the
Company in its discretion may, instead of issuing a new note, pay, redeem or
purchase such note, as the case may be.
To the extent permitted by law, the Company, the Paying Agent,
the Registrar and the Transfer Agent shall be entitled to treat the person in
whose name any certificated note is registered as the absolute owner thereof.
The Indenture will contain provisions relating to the maintenance of a register
reflecting ownership of certificated notes, if any, and other provisions
customary for a registered debt security including registration as to both
principal and stated interest and restrictions on transfer except by surrender
of a certificated note and either the reissuance of such certificated note or
the issuance of a new certificated note to the new holder. Payment of principal
on each certificated note will be made to the holder against presentation and
surrender. Payment of interest on each certificated note will be made to the
holder appearing on the register at the close of business on the record date at
his address shown on the register on the record date.
None of the Company, the Trustee, the Depositary or any Paying
Agent will have any responsibility or liability for any aspect of the records
relating to, or payments made on account of, any Book-Entry Interest.
TRANSFER AND EXCHANGE
A holder may transfer or exchange interests in the notes in
accordance with procedures described in "Book-Entry; Delivery and Form". The
registrar and the Trustee may require a holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
holder to pay any taxes and fees required by law or permitted by the indenture.
The Company is not required to transfer or exchange any note selected for
redemption. Also, the Company is not required to transfer or exchange any note
for a period of 15 days before a selection of notes to be redeemed. The
registered holder of a note will be treated as the owner of it for all purposes.
REDEMPTION OF GLOBAL NOTES
In the event that any Global Note (or any portion thereof) is
redeemed, the Depositary will redeem an equal amount of the Book-Entry Interests
in such Global Note from the amount received by it in respect to the redemption
of such Global Note. The redemption price payable in connection with the
redemption of such Book-Entry Interests will be equal to the amount received by
the Depositary in connection with the redemption of such Global Note (or any
portion thereof).
RESIGNATION OF COMMON DEPOSITARY
The Common Depositary may at any time resign as Common Depositary
by written notice to the Company and the Trustee, such resignation to become
effective upon the appointment of a successor Common Depositary, in which case
the Global Notes shall be delivered to such successor. If no successor has been
so appointed by the Company within 90 days, certificated notes shall be issued
in exchange therefor as described above.
LISTING
The Company has applied to list the notes on the Luxembourg Stock
Exchange. The legal notice relating to the issue of the notes and the
certificate of incorporation of the Company will be registered prior to the
listing with the Chief Registrar of the District Court in Luxembourg, where such
documents are available for inspection and where copies thereof can be obtained
upon request. In addition, as long as the notes are listed on the Luxembourg
Stock Exchange, an agent for making payments on, and transfers of, notes will be
maintained in Luxembourg. The Company has initially designated Paribas
Luxembourg as its agent for this purpose.
REPORTS
The Trustee will immediately send to Euroclear, Cedelbank and
DTC, a copy of any notices, reports and other communications received relating
to the Company, the notes, the Guarantees or the Book-Entry Interests.
CERTAIN DEFINITIONS
"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.
"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 are 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.
"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 Restricted 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 the first paragraph
under "Consolidation, Merger, Sale of Assets" 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 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 "Certain Covenants-Limitation on Sale of Assets."
"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.
"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.
"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.
"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 the 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.
"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 the Indenture, and
thereafter "Company" shall mean such successor Person.
"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 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 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 Persons 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, 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 "Certain
Covenants-Limitation on Indebtedness"; provided that, for purposes of the
definition of "Permitted Indebtedness," no such increase may result in principal
amount of Indebtedness of the Company under the Credit Agreement exceeding the
amount permitted by subparagraph (b)(i) of "Certain Covenants-Limitation on
Indebtedness"), 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.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Designation" has the meaning set forth under "Certain
Covenants-Designation of Unrestricted Subsidiaries."
"Designation Amounts" has the meaning set forth under "Certain
Covenants-Designation of Unrestricted Subsidiaries."
"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.
"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 the Indenture.
"Guarantee" means the guarantee by each Guarantor of the
Company's Indenture Obligations pursuant to a guarantee given in accordance with
the Indenture, including the Guarantees by the Guarantors and any Guarantee
delivered pursuant to provisions of "Certain Covenants-Limitation on Guarantees
by Restricted Subsidiaries."
"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 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 the Indenture as guarantors and each other Subsidiary, formed, created or
acquired after the Issue Date, required to become a Guarantor after the Issue
Date, pursuant to "Certain Covenants-Limitation on Guarantees by Restricted
Subsidiaries."
"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.
"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
the 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 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
the Indenture, the notes and the performance of all other obligations to the
Trustee and the holders under the Indenture and the notes, according to the
terms thereof.
"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.
"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 November 17, 1999.
"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 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 Investors Service, 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 under "Certain
Covenants-Limitation on Restricted Payments," 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 expenses actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"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.
"Other Indebtedness" has the meaning set forth under "Certain
Covenants-Limitation on Guarantees by Restricted Subsidiaries."
"Pari Passu Indebtedness" means any Indebtedness of the Company
or a Guarantor that is pari passu in right of payment to the notes or a
Guarantee, as the case may be.
"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 "Certain Covenants-Limitation on Sale of
Assets" to the extent such Investments are non-cash proceeds as permitted under
such covenant; (v) guarantees of Indebtedness otherwise permitted by the
Indenture; (vi) Investments in existence on the date of the 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 date
of the Issue Date, and including, without limitation, all classes and series of
preferred or preference stock.
"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.
"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 "Certain Covenants-Purchase of notes Upon a Change of Control") 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.
"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 "Certain Covenants-Designation of
Unrestricted Subsidiaries" above. 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.
"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.
"S&P" means Standard & Poor's Ratings Group 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.
"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 Investors Service, Inc. ("Moody's") or any successor rating agency or
"A-1" (or higher) according to Standard and Poor's Corporation ("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 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" means the Trust Indenture Act of 1939, as
amended.
"United Kingdom Government Obligations" means direct obligations
of, and obligations guaranteed by, the United Kingdom for the payment of which
the full faith and credit of the United Kingdom is pledged.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated as such pursuant to "Certain Covenants-Designation of Unrestricted
Subsidiaries" above. 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.
"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.
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain anticipated U.S. federal
income tax consequences of the purchase, ownership and disposition of the notes,
based upon the Internal Revenue Code of 1986, as amended, and existing
regulations, rulings and judicial decisions as of the date of this prospectus.
Such authorities may be repealed, revoked or modified, possibly with retroactive
effect, so as to result in federal income tax consequences different from those
discussed below. Except as specifically set forth in this prospectus, this
summary deals only with notes held as capital assets by initial holders, and
does not deal with special situations, such as those of dealers in securities or
currencies, financial institutions, banks, tax-exempt organizations, insurance
companies, holders that are partnerships or other pass-through entities and
holders whose "functional currency" is not the U.S. dollar, or special rules
with respect to "straddle," "conversion," "hedging" or "constructive sales"
transactions. This summary is not binding on the Internal Revenue Service or the
courts. No ruling has been sought or will be sought from the Internal Revenue
Service with respect to the positions and issues discussed herein, and there can
be no assurance that the Internal Revenue Service will not take a different
position concerning the tax consequences of the purchase, ownership or
disposition of the notes or that any such position would not be sustained.
PROSPECTIVE INVESTORS ARE URGED TO CONSULT THEIR TAX ADVISORS REGARDING THE
PARTICULAR TAX CONSEQUENCES OF PURCHASING, HOLDING AND DISPOSING OF NOTES THAT
MAY BE SPECIFIC TO THEM, INCLUDING THE TAX CONSEQUENCES ARISING UNDER ANY STATE,
LOCAL OR FOREIGN LAWS.
As used in this prospectus, the term "U.S. Holder" means a
beneficial owner of a note who or that is for United States federal income tax
purposes (i) a citizen or resident of the United States, (ii) a corporation
created or organized in or under the laws of the United States or any political
subdivision thereof, (iii) an estate the income of which is subject to U.S.
federal income taxation regardless of source, or (iv) a trust if both: (A) a
U.S. court is able to exercise primary supervision over the administration of
the trust, and (B) one or more U.S. persons have the authority to control all
substantial decisions of the trust. As used in this Prospectus, the term
"Non-U.S. Holder" means a holder of a note that is not a U.S. Holder.
EXCHANGE OF NOTES
There will be no federal income tax consequences to holders
exchanging old notes for new notes pursuant to the exchange offer since the
exchange offer will be by operation of the original terms of the old notes,
pursuant to a unilateral act by us, and will not result in any material
alteration in the terms of the old notes. Each exchanging holder will have the
same adjusted tax basis and holding period in the new notes as it had in the old
notes immediately before the exchange.
U.S. HOLDERS
Interest. Interest (including additional amounts, if any) on the
notes generally will be taxable to a U.S. Holder as ordinary interest income at
the time accrued or received in accordance with the U.S. Holder's regular method
of accounting for federal income tax purposes.
A U.S. Holder who uses the cash method of accounting for federal
income tax purposes and who receives interest on a note in pounds sterling will
be required to include in income the U.S. dollar value of such pounds sterling.
The U.S. dollar value will be determined using the spot rate in effect on the
date such payment is received, regardless of whether the payment is in fact
converted to U.S. dollars at that time. No exchange gain or loss will be
recognized by such holder if the pounds sterling are converted to U.S. dollars
on the date received. The U.S. federal income tax consequences of the conversion
of pounds sterling into U.S. dollars are described below. See "-Exchange of
Foreign Currencies."
A U.S. Holder who uses the accrual method of accounting for
federal income tax purposes, or who is otherwise required to accrue interest
prior to receipt, will be required to include in income the U.S. dollar value of
the amount of interest income accrued, or otherwise required to be taken into
account, with respect to a note in a taxable year. The U.S. dollar value of the
accrued income will be determined by translating that income at the average rate
of exchange for the relevant interest accrual period, or with respect to an
accrual period that spans two taxable years, at the average rate for the portion
of the accrual period within the taxable year. The average rate of exchange for
an interest accrual period, or portion thereof, is the simple average of the
exchange rates for each business day of the period, or another average that is
reasonably derived and consistently applied.
An accrual basis U.S. Holder may elect, however, to translate the
accrued interest income using the spot rate of exchange in effect on the last
day of the accrual period or, with respect to the earlier taxable year portion
of an accrual period that spans two taxable years, using the spot rate of
exchange in effect on the last day of the taxable year. In addition, if the last
day of an accrual period is within five business days of the receipt, or
payment, of the accrued interest, a U.S. Holder may elect to translate such
interest using the spot rate of exchange in effect on the date of receipt or
payment. The above election must be made in a statement filed with the U.S.
Holder's tax return and will apply to other debt obligations held by the U.S.
Holder at the beginning of the first taxable year in which the election applies
or acquired thereafter and may not be changed without the consent of the
Internal Revenue Service. Whether or not such election is made, a U.S. Holder
may recognize exchange gain or loss with respect to accrued interest income on
the date such interest income is received.
The exchange gain or loss will be treated as ordinary income or
loss. The amount of ordinary income or loss recognized will equal the
difference, if any, between the U.S. dollar value of the pounds sterling
received, determined using the spot rate in effect on the date the payment is
received and the U.S. dollar value of the interest income that has accrued
during the interest accrual period, as determined above. No additional exchange
gain or loss will be recognized by the holder if the pounds sterling are
converted to U.S. dollars on the date received. The U.S. federal income tax
consequences of the conversion of pounds sterling into U.S. dollars are
described below. See "-Exchange of Foreign Currencies."
Dispositions. Upon the sale, exchange, retirement or other
disposition of a note, a U.S. Holder generally will recognize taxable gain or
loss equal to the difference between the amount realized on the disposition
(other than any amounts attributable to accrued but unpaid interest) and the
holder's adjusted tax basis in the note. The gain or loss generally will be
capital gain or loss, except with respect to gains or losses attributable to
changes in currency exchange rates, as described below. To the extent that the
amount realized represents accrued but unpaid interest, however, such amounts
must be taken into account as interest income, with exchange gain or loss
computed as described above. If a U.S. Holder receives foreign currency on a
sale, exchange or retirement, the amount realized will be based on the U.S.
dollar value of the foreign currency on the date of disposition assuming the
notes are not traded on an established securities market. A U.S. Holder's
adjusted tax basis in a note will equal the U.S. dollar cost of the note to the
holder on the date of purchase assuming the notes are not traded on an
established securities market. If a U.S. Holder purchases a note with previously
owned foreign currency, the holder will recognize ordinary income or loss in an
amount equal to the difference, if any, between the holder's tax basis in the
foreign currency and the U.S. dollar value of the foreign currency used to
purchase the note, determined on the date of purchase.
If the notes are traded on an established securities market,
there is a special rule for purchases and sales of those notes by a cash basis
taxpayer under which units of foreign currency paid or received are translated
into U.S. dollars at the spot rate on the settlement date of the purchase or
sale. In that case, no exchange gain or loss will result from currency
fluctuations between the trade date and the settlement of such a purchase or
sale. An accrual basis taxpayer may elect the same treatment required of cash
basis taxpayers with respect to purchases and sales of publicly traded notes,
provided the election is applied consistently. Such election cannot be changed
without the consent of the Internal Revenue Service.
Gain or loss realized by a U.S. Holder upon the sale, exchange or
retirement of a note that is attributable to fluctuations in the currency
exchange rates will be ordinary income or loss and generally will not be treated
as interest income or expense. Gain or loss attributable to fluctuations in
exchange rates will equal the difference between the U.S. dollar value of the
foreign currency principal amount of the note, determined on the date the
payment is received or the note is disposed of, and the U.S. dollar value of the
foreign currency principal amount of the note, determined on the date the U.S.
Holder acquired the note. The foreign currency gain or loss will be recognized
only to the extent of the total gain or loss realized by the U.S. Holder on the
sale, exchange or retirement of the note.
For certain non-corporate U.S. Holders, including individuals,
the rate of taxation of capital gains will depend upon the holder's holding
period in the note, with a preferential rate generally available for notes held
for more than one year. The deductibility of capital losses is subject to
limitations.
Exchange of Foreign Currencies. A. U.S. Holder will have a tax
basis in any pounds sterling received, as interest or on the sale, exchange,
retirement or other disposition of a note, equal to their U.S. dollar value at
the time the interest is received or at the time payment is received in
consideration of the sale, exchange or retirement. Any gain or loss realized by
a U.S. Holder on a sale or other disposition of pounds sterling, including their
exchange for U.S. dollars or their use to purchase notes, will be ordinary
income or loss.
NON-U.S. HOLDERS
The following discussion is limited to the U.S. federal income
tax consequences relevant to a holder of a note that is a Non-U.S. Holder.
Interest. Subject to the discussion below concerning backup
withholding, payments of interest on a note to any Non-U.S. Holder will
generally not be subject to U.S. federal income or withholding tax, provided
that (1) the holder is not (i) a direct or indirect owner, taking into account
certain attribution rules, of 10% or more of the total voting power of all
voting stock of the issuer or (ii) a controlled foreign corporation related to
the issuer through stock ownership, (2) such interest payments are not
effectively connected with the conduct by the Non-U.S. Holder of a trade or
business within the United States and (3) the issuer or its paying agent
receives (i) from the Non-U.S. Holder, a properly completed Form W-8, or
substitute Form W-8, under penalties of perjury, which provides the Non-U.S.
Holder's name and address and certifies that the Non-U.S. Holder of the note is
a Non-U.S. Holder or (ii) from a security clearing organization, bank or other
financial institution that holds the notes in the ordinary course of its trade
or business (a "financial institution") on behalf of the Non-U.S. Holder,
certification under penalties of perjury that such a Form W-8 or substitute Form
W-8 has been received by it, or by another such financial institution, from the
Non-U.S. Holder, and a copy of the Form W-8 or substitute Form W-8, is furnished
to the payor.
A Non-U.S. Holder that does not qualify for exemption from
withholding under the preceding paragraph generally will be subject to
withholding of U.S. federal income tax at the rate of 30%, or lower applicable
treaty rate, on payments of interest on the notes. To the extent a Non-U.S.
Holder seeks a reduced rate of withholding under a treaty, such holder must
provide the issuer or its paying agent with a properly completed Form 1001 or
Form W-8.
If the payments of interest on a note are effectively connected
with the conduct by a Non-U.S. Holder of a trade or business in the United
States, such payments will be subject to U.S. federal income tax on a net basis
at the rates applicable to United States persons generally and, with respect to
corporate holders, may also be subject to a 30% branch profits tax. If payments
are subject to U.S. federal income tax on a net basis in accordance with the
rules described in the preceding sentence, those payments will not be subject to
withholding tax so long as the holder provides the issuer or its paying agent
with a properly executed Form 4224.
Non-U.S. Holders should consult any applicable income tax
treaties, which may provide for a lower rate of withholding tax, exemption from
or reduction of branch profits tax, or other rules different from those
described above.
Dispositions. Subject to the discussion below concerning backup
withholding, any gain realized by a Non-U.S. Holder on the sale, exchange,
retirement or other disposition of a note generally will not be subject to U.S.
federal income or withholding tax, unless (i) such gain is effectively connected
with the conduct by such Non-U.S. Holder of a trade or business within the
United States, (ii) the Non-U.S. Holder is an individual who is present in the
United States for 183 days or more in the taxable year of the disposition and
certain other conditions are satisfied, or (iii) the Non-U.S. Holder is subject
to tax pursuant to the provisions of U.S. tax law applicable to certain U.S.
expatriates.
Federal Estate Tax. Notes held, or treated as held, by an
individual who is a Non-U.S. Holder at the time of his or her death will not be
subject to U.S. federal tax provided that (i) the individual does not actually
or constructively own 10% or more of the total voting power of all voting stock
of the issuer and (ii) income on the notes was not effectively connected with
the conduct by the Non-U.S. Holder of a trade or business within the United
States.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Payments with respect to the notes and the proceeds upon the sale
or other disposition of the notes may be subject to information reporting and
possibly U.S. backup withholding at a 31% rate. Backup withholding will not
apply to a U.S. Holder who furnishes its correct taxpayer identification number
and provides other certification. Backup withholding will not apply to payments
made by the issuer in respect of the notes to a Non-U.S. Holder, if the holder
certifies, under penalty of perjury, that it is not a U.S. person and provides
its name and address, provided that neither the issuer nor its paying agent has
actual knowledge that the holder is a U.S. person, or the Non-U.S. Holder
otherwise establishes an exemption. Copies of information returns may be made
available, under the provisions of a specific treaty or agreement, to the tax
authorities of the country in which the Non-U.S. Holder resides.
Payment of proceeds from the disposition of notes to or through
the United States office of any broker, U.S. or foreign, will be subject to
information reporting and backup withholding unless the owner certifies as to
its non-U.S. status under penalty of perjury or otherwise establishes an
exemption, provided that the broker does not have actual knowledge that the
holder is a U.S. person or that the conditions of any other exemption are not,
in fact, satisfied. The payment of the proceeds from the disposition of a note
to or through a non-U.S. office of a non-U.S broker that is not a "U.S. related
person," as defined in applicable Treasury Regulations, will not be subject to
information reporting or backup withholding. In the case of the payment of
proceeds from the disposition of a note to or through a non-U.S. office of a
broker that is a U.S. person or a "U.S. related person," the regulations require
information reporting on the payment unless the broker has documentary evidence
in its files that the owner is not a U.S. person and the broker has no knowledge
to the contrary. Backup withholding will not apply to payments made through a
non-U.S. foreign office of a broker that is a U.S. person or a "U.S. related
person," absent actual knowledge that the payee is a U.S. person.
Amounts withheld under the backup withholding rules do not
constitute a separate United States federal income tax. Rather, any amount
withheld under the backup withholding rules will be allowed as a refund or a
credit against a holder's U.S. federal income tax liability, if any, provided
that the requisite procedures are followed.
The Treasury Department recently promulgated final regulations
regarding the withholding and information reporting rules discussed above. In
general, the final regulations do not significantly alter the substantive
withholding and information reporting requirements but rather unify current
certification procedures and forms and clarify certain standards governing the
information upon which a withholding agent may rely. The final regulations are
generally effective for payments made after December 31, 2000 subject to certain
transition rules. Non-U.S. Holders should consult their own tax advisors with
respect to the impact, if any, of the final regulations.
PLAN OF DISTRIBUTION
If you are a broker-dealer and hold old notes for your own
account as a result of market-making activities or other trading activities and
you receive new notes in exchange for old notes in the exchange offer, you may
be a statutory underwriter and must acknowledge that you will deliver a
prospectus in connection with any resale of such new notes. This prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of new notes received in exchange for
old notes where such old notes were acquired as a result of market-making
activities or other trading activities. We acknowledge and, unless you are a
broker-dealer, you must acknowledge that you are not engaged in, do not intend
to engage in, and have no arrangement or understanding with any person to
participate in a distribution of new notes. We have agreed that starting on the
expiration date of the exchange offer and ending on the close of business on the
180th day following the expiration date of the exchange offer, we will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale.
We will not receive any proceeds from any sale of new notes by
broker-dealers. New notes received by broker-dealers for their own account
pursuant to the exchange offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the new notes or a combination of those methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any resale of that kind may
be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such new notes. Any broker-dealer
that resells new notes that were received by it for its own account pursuant to
the exchange offer and any broker or dealer that participates in a distribution
of such new notes may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of new notes and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The letter of transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the expiration date, we will
promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the letter of transmittal.
We have agreed to pay all expenses incident to the exchange offer
(including the expenses of one counsel for the holders of the notes) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the notes, including any broker-dealers, against various liabilities,
including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the issuance of the new notes will be passed upon
for us by McDermott, Will & Emery.
EXPERTS
The audited consolidated financial statements incorporated by
reference in this prospectus and elsewhere in the registration statement have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated by
reference herein in reliance upon the authority of said firm as experts in
giving said report.
The statement of assets and liabilities related to the product
lines sold to Canandaigua Brands, Inc. as of April 9, 1999 and the related
statement of identified income and expenses for the year ended December 31,
1998, have been incorporated by reference herein in reliance upon the report of
KPMG LLP, independent certified public accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
<PAGE>
[Until , 2000, which is 90 days after the date of this prospectus, if you are a
dealer effecting transactions in the new notes, whether or not you are
participating in the exchange offer, you may be required to deliver a
prospectus. This obligation is in addition to the obligation of dealers to
deliver a prospectus when acting as underwriters and with respect to their
unsold allotments or subscriptions.]
CANANDAIGUA BRANDS, INC.
OFFER TO EXCHANGE
(POUND)75,000,000
8 1/2% SENIOR NOTES DUE 2009
---------------------
PROSPECTUS
--------------------
_____________, 2000
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law (Section 102) allows a
corporation to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for a breach of fiduciary
duty as a director, but a corporation may not so eliminate or limit a director's
liability for a breach of the duty of loyalty, a failure to act in good faith,
engaging in intentional misconduct or a knowing violation of a law, authorizing
the payment of a dividend or approving a stock repurchase in violation of the
Delaware General Corporation Law, or obtaining an improper personal benefit. The
Company's Restated Certificate of Incorporation contains a provision which
eliminates directors' personal liability to the extent permitted by the Delaware
General Corporation Law.
The Delaware General Corporation Law (Section 145) gives Delaware
corporations broad powers to indemnify their present and former directors and
officers and those of affiliated corporations against expenses incurred in the
defense of any lawsuit to which they are made parties by reason of being or
having been such directors or officers, subject to specified conditions and
exclusions; gives a director or officer who successfully defends an action the
right to be so indemnified; and authorizes the Company to buy directors' and
officers' liability insurance. Such indemnification is not exclusive of any
other right to which those indemnified may be entitled under any bylaw,
agreement, vote of stockholders or otherwise.
The Company's Restated Certificate of Incorporation provides for
indemnification to the fullest extent authorized by Section 145 of the Delaware
General Corporation Law for directors, officers and employees of the Company and
also to persons who are serving at the request of the Company as directors,
officers or employees of other corporations (including subsidiaries); provided
that, with respect to proceedings initiated by such indemnitee, indemnification
shall be provided only if such proceedings were authorized by the Board of
Directors. This right of indemnification is not exclusive of any other right
which any person may acquire under any statute, bylaw, agreement, contract, vote
of stockholders or otherwise.
The Company maintains a directors' and officers' liability
insurance and corporate reimbursement policy insuring directors and officers
against loss arising from claims made arising out of the performance of their
duties.
ITEM 21. EXHIBITS.a
Exhibit
Number Description of Exhibit
- ------ ----------------------
4.1 Indenture, dated as of November 17, 1999, by and among the
Company, certain subsidiaries and Harris Trust and Savings Bank,
as Trustee 4.2 Registration Rights Agreement, dated as of
November 17, 1999, by and among the Company, the guarantors named
therein, and J.P. Morgan Securities Ltd.
4.3 Form of new notes (included in Exhibit 4.1)
5 Opinion of McDermott, Will & Emery
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Arthur Andersen LLP
23.2 Consent of KPMG LLP
23.3 Consent of McDermott, Will & Emery (included in Exhibit 5)
24 Powers of Attorney (included on the signature pages of the
registration statement)
25 Statement of Eligibility of Trustee on Form T-1
99.1 Form of Letter of Transmittal
99.2 Form of Letter to Registered Holders
99.3 Form of Letter to Clients and Instruction to Registered Holder
from Beneficial Owner
(a) The exhibits listed are pursuant to Regulation S-K Item 601 exhibit table
footnote 3: "an exhibit need not be provided about a company if (1) with respect
to such company an election has been made under Forms S-4 or F-4 to provide
information about such company at a level prescribed by Forms S-2, S-3, F-2 or
F-3 and (2) the form, the level of which has been elected under Forms S-4 or
F-4, would not require such company to provide such exhibit if it were
registering a primary offering."
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required
by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any
facts or events arising after the
effective date of the registration
statement (or the most recent
post-effective amendment thereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in the registration statement.
Notwithstanding the foregoing, any
increase or decrease in volume of
securities offered (if the total
dollar amount of securities offered
would not exceed that which was
registered) and any deviation from
the low or high end of the estimated
offering range may be reflected in
the form of prospectus filed with
the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in
volume and price represent no more
than a 20 percent change in the
maximum aggregate offering price set
forth in the "Calculation of
Registration Fee" table in the
effective registration statement;
(iii) To include any material information
with respect to the plan of
distribution not previously
disclosed in the registration
statement or any material change to
such information in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a
new registration statement relating to the
securities offered therein, and the offering of
such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
(d) The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into
the prospectus pursuant to Items 4, 10(b), 11, or 13 of this
Form, within one business day of receipt of such request, and to
send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the
registration statement through the date of responding to the
request.
(e) The undersigned registrant hereby undertakes to supply by means
of a post-effective amendment all information concerning a
transaction, and the company being acquired involved therein,
that was not the subject of and included in the registration
statement when it became effective.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fairport, State of New
York on January 10, 2000.
Canandaigua Brands, Inc.
By: /s/ Richard E. Sands
------------------------------------------
Richard E. Sands
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Canandaigua Brands, Inc.) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s Richard E. Sands
- ----------------------------------------- President, Chief Executive Officer and a January 10, 2000
Richard E. Sands Director (Principal Executive Officer)
/s/ Robert S. Sands
- ----------------------------------------- Executive Vice President, General Counsel January 10, 2000
Robert S. Sands and a Director
/s/ Thomas S. Summer
- ----------------------------------------- Senior Vice President and Chief Financial January 10, 2000
Thomas S. Summer Officer (Principal Financial Officer and
Principal Accounting Officer)
/s/ Thomas C. McDermott
- ----------------------------------------- Director January 10, 2000
Thomas C. McDermott
<PAGE>
/s/ James A. Locke, III
- ----------------------------------------- Director January 10, 2000
James A. Locke, III
/s/ Paul L. Smith
- ----------------------------------------- Director January 10, 2000
Paul L. Smith
/s/ George Bresler
- ----------------------------------------- Director January 10, 2000
George Bresler
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fairport, State of New
York on January 10, 2000.
Batavia Wine Cellars, Inc.
By: /s/ Ned Cooper
------------------------------------------
Ned Cooper, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Batavia Wine Cellars, Inc.) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Ned Cooper
- ----------------------------------------- President (Principal Executive Officer) January 10, 2000
Ned Cooper
/s/ Thomas S. Summer
- ----------------------------------------- Treasurer (Principal Financial Officer and January 10, 2000
Thomas S. Summer Principal Accounting Officer)
/s/ Richard E. Sands
- ----------------------------------------- Vice President and a Director January 10, 2000
Richard E. Sands
/s/ Robert S. Sands
- ----------------------------------------- Secretary and a Director January 10, 2000
Robert S. Sands
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois on January 10, 2000.
Barton Incorporated
By: /s/ Alexander L. Berk
------------------------------------------
Alexander L. Berk
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Barton Incorporated) to sign any or all amendments (including
post-effective amendments and any registration statement filed pursuant to Rule
462(b)) to this Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Alexander L. Berk
- ----------------------------------------- President, Chief Executive Officer and a January 10, 2000
Alexander L. Berk Director (Principal Executive Officer)
/s/ Raymond E. Powers
- ----------------------------------------- Executive Vice President, Treasurer, Assistant January 10, 2000
Raymond E. Powers Secretary and a Director (Principal Financial
Officer and Principal Accounting Officer)
/s/ Edward L. Golden
- ----------------------------------------- Vice President and a Director January 10, 2000
Edward L. Golden
/s/ Richard E. Sands
- ----------------------------------------- Vice President and a Director January 10, 2000
Richard E. Sands
/s/ Robert S. Sands
- ----------------------------------------- Vice President and a Director January 10, 2000
Robert S. Sands
/s/ William F. Hackett
- ----------------------------------------- Director January 10, 2000
William F. Hackett
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois on January 10, 2000.
Barton Brands, Ltd.
By: /s/ Edward L. Golden
------------------------------------------
Edward L. Golden, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Barton Brands, Ltd.) to sign any or all amendments (including
post-effective amendments and any registration statement filed pursuant to Rule
462(b)) to this Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Edward L. Golden
- ----------------------------------------- President and a Director (Principal January 10, 2000
Edward L. Golden Executive Officer)
/s/ Raymond E. Powers
- ----------------------------------------- Executive Vice President, Treasurer, January 10, 2000
Raymond E. Powers Assistant Secretary and a Director
(Principal Financial Officer and Principal
Accounting Officer)
/s/ Alexander L. Berk
- ----------------------------------------- Executive Vice President and a Director January 10, 2000
Alexander L. Berk
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois on January 10, 2000.
Barton Beers, Ltd.
By: /s/ Richard E. Sands
------------------------------------------
Richard E. Sands,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Barton Beers, Ltd.) to sign any or all amendments (including
post-effective amendments and any registration statement filed pursuant to Rule
462(b)) to this Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Richard E. Sands
- ----------------------------------------- Chief Executive Officer and a Director January 10, 2000
Richard E. Sands (Principal Executive Officer)
/s/ Raymond E. Powers
- ----------------------------------------- Executive Vice President, Treasurer, January 10, 2000
Raymond E. Powers Assistant Secretary and a Director
(Principal Financial Officer and Principal
Accounting Officer)
/s/ Alexander L. Berk
- ----------------------------------------- Executive Vice President and a Director January 10, 2000
Alexander L. Berk
/s/ William F. Hackett
- ----------------------------------------- President and a Director January 10, 2000
William F. Hackett
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois on January 10, 2000.
Barton Brands of California, Inc.
By: /s/ Alexander L. Berk
------------------------------------------
Alexander L. Berk, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Barton Brands of California Inc.) to sign any or all
amendments (including post-effective amendments and any registration statement
filed pursuant to Rule 462(b)) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Alexander L. Berk
- ----------------------------------------- President and a Director (Principal January 10, 2000
Alexander L. Berk Executive Officer)
/s/ Raymond E. Powers
- ----------------------------------------- Executive Vice President, Treasurer, January 10, 2000
Raymond E. Powers Assistant Secretary and a Director
(Principal Financial Officer and Principal
Accounting Officer)
/s/ Edward L. Golden
- ----------------------------------------- Vice President and a Director January 10, 2000
Edward L. Golden
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois on January 10, 2000.
Barton Brands of Georgia, Inc.
By: /s/ Alexander L. Berk
------------------------------------------
Alexander L. Berk, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Barton Brands of Georgia, Inc.) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Alexander L. Berk
- ----------------------------------------- President and a Director (Principal January 10, 2000
Alexander L. Berk Executive Officer)
/s/ Raymond E. Powers
- ----------------------------------------- Executive Vice President, Treasurer, January 10, 2000
Raymond E. Powers Assistant Secretary and a Director
(Principal Financial Officer and Principal
Accounting Officer)
/s/ Edward L. Golden
- ----------------------------------------- Vice President and a Director January 10, 2000
Edward L. Golden
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois on January 10, 2000.
Barton Distillers Import Corp.
By: /s/ Alexander L. Berk
------------------------------------------
Alexander L. Berk, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Barton Distillers Import Corp.) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Alexander L. Berk
- ----------------------------------------- President and a Director (Principal January 10, 2000
Alexander L. Berk Executive Officer)
/s/ Raymond E. Powers
- ----------------------------------------- Executive Vice President, Treasurer, January 10, 2000
Raymond E. Powers Assistant Secretary and a Director
(Principal Financial Officer and Principal
Accounting Officer)
/s/ Edward L. Golden
- ----------------------------------------- Director January 10, 2000
Edward L. Golden
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois on January 10, 2000.
Barton Financial Corporation
By: /s/ Raymond E. Powers
------------------------------------------
Raymond E. Powers, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Barton Financial Corporation) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Raymond E. Powers
- ----------------------------------------- President, Secretary and a Director January 10, 2000
Raymond E. Powers (Principal Executive Officer)
/s/ Charles T. Schlau
- ----------------------------------------- Treasurer and a Director January 10, 2000
Charles T. Schlau (Principal Financial Officer and Principal
Accounting Officer)
/s/ Charles B. Campbell, Jr.
- ----------------------------------------- Vice President and a Director January 10, 2000
Charles B. Campbell, Jr.
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois on January 10, 2000.
Stevens Point Beverage Co.
By: /s/ James P. Ryan
------------------------------------------
James P. Ryan
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Stevens Point Beverage Co.) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ James P. Ryan
- ----------------------------------------- President, Chief Executive Officer and a January 10, 2000
James P. Ryan Director (Principal Executive Officer)
/s/ Raymond E. Powers
- ----------------------------------------- Executive Vice President, Treasurer, January 10, 2000
Raymond E. Powers Assistant Secretary and a Director
(Principal Financial Officer and Principal
Accounting Officer)
/s/ Alexander L. Berk
- ----------------------------------------- Executive Vice President and a Director January 10, 2000
Alexander L. Berk
/s/ William F. Hackett
- ----------------------------------------- Director January 10, 2000
William F. Hackett
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois on January 10, 2000.
Monarch Import Company
By: /s/ James P. Ryan
------------------------------------------
James P. Ryan, Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Monarch Import Company) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ James P. Ryan
- ----------------------------------------- Chief Executive Officer (Principal January 10, 2000
James P. Ryan Executive Officer)
/s/ Raymond E. Powers
- ----------------------------------------- Executive Vice President, Treasurer, January 10, 2000
Raymond E. Powers Assistant Secretary and a Director
(Principal Financial Officer and Principal
Accounting Officer)
/s/ Alexander L. Berk
- ----------------------------------------- President and a Director January 10, 2000
Alexander L. Berk
/s/ William F. Hackett
- ----------------------------------------- Vice President and a Director January 10, 2000
William F. Hackett
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fairport, State of New
York on January 10, 2000.
Canandaigua Wine Company, Inc.
By: /s/ Jon Moramarco
------------------------------------------
Jon Moramarco
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Canandaigua Wine Company, Inc.) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Jon Moramarco
- ----------------------------------------- President and Chief Executive Officer January 10, 2000
Jon Moramarco (Principal Executive Officer)
/s/ Thomas S. Summer
- ----------------------------------------- Treasurer (Principal Financial Officer and January 10, 2000
Thomas S. Summer Principal Accounting Officer)
/s/ Robert S. Sands
- ----------------------------------------- Vice President and a Director January 10, 2000
Robert S. Sands
/s/ Richard E. Sands
- ----------------------------------------- Vice President and a Director January 10, 2000
Richard E. Sands
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois on January 10, 2000.
The Viking Distillery, Inc.
By: /s/ Alexander L. Berk
------------------------------------------
Alexander L. Berk, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of The Viking Distillery, Inc.) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Alexander L. Berk
- ----------------------------------------- President and a Director (Principal January 10, 2000
Alexander L. Berk Executive Officer)
/s/ Raymond E. Powers
- ----------------------------------------- Executive Vice President, Treasurer, January 10, 2000
Raymond E. Powers Assistant Secretary and a Director
(Principal Financial Officer and Principal
Accounting Officer)
/s/ Edward L. Golden
- ----------------------------------------- Vice President and a Director January 10, 2000
Edward L. Golden
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fairport, State of New
York on January 10, 2000.
Canandaigua Europe Limited
By: /s/ Douglas Kahle
------------------------------------------
Douglas Kahle, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Canandaigua Europe Limited) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Douglas Kahle
- ----------------------------------------- President (Principal Executive Officer) January 10, 2000
Douglas Kahle
/s/ Thomas S. Summer
- ----------------------------------------- Treasurer (Principal Financial Officer and January 10, 2000
Thomas S. Summer Principal Accounting Officer)
/s/ Richard E. Sands
- ----------------------------------------- Vice President and Director January 10, 2000
Richard E. Sands
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fairport, State of New
York on January 10, 2000.
Roberts Trading Corp.
By: /s/ Thomas S. Summer
------------------------------------------
Thomas S. Summer, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Roberts Trading Corp.) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Thomas S. Summer
- ------------------------------------------ President and Treasurer (Principal
Thomas S. Summer Executive Officer, Principal Financial January 10, 2000
Officer and Principal Accounting Officer)
/s/ Richard E. Sands
- ----------------------------------------- Vice President and a Director January 10, 2000
Richard E. Sands
/s/ Robert S. Sands
- ----------------------------------------- Vice President, Secretary and a Director January 10, 2000
Robert S. Sands
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fairport, State of New
York on January 10, 2000.
Canandaigua Limited
By: /s/ Robert S. Sands
------------------------------------------
Robert S. Sands, Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Canandaigua Limited) to sign any or all amendments (including
post-effective amendments and any registration statement filed pursuant to Rule
462(b)) to this Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert S. Sands
- --------------------------------------- Chief Executive Officer and a Director
Robert S. Sands (Principal Executive Officer and January 10, 2000
Authorized Representative in the United
States)
/s/ Thomas S. Summer
- --------------------------------------- Finance Director (Principal Financial January 10, 2000
Thomas S. Summer Officer and Principal Accounting Officer)
/s/ Richard E. Sands
- --------------------------------------- Director January 10, 2000
Richard E. Sands
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fairport, State of New
York on January 10, 2000.
Polyphenolics, Inc.
By: /s/ Richard Keeley
------------------------------------------
Richard Keeley, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Polyphenolics, Inc.) to sign any or all amendments (including
post-effective amendments and any registration statement filed pursuant to Rule
462(b)) to this Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Richard Keeley
- ----------------------------------------- President and Director (Principal January 10, 2000
Richard Keeley Executive Officer)
/s/ Thomas S. Summer
- ----------------------------------------- Vice President and Treasurer (Principal January 10, 2000
Thomas S. Summer Financial Officer and Principal Accounting
Officer)
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois on January 10, 2000.
Barton Canada, Ltd.
By: /s/ Alexander L. Berk
------------------------------------------
Alexander L. Berk, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Barton Canada, Ltd.) to sign any or all amendments (including
post-effective amendments and any registration statement filed pursuant to Rule
462(b)) to this Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Alexander L. Berk
- ------------------------------------------- President and a Director (Principal
Alexander L. Berk Executive Officer) January 10, 2000
/s/ Raymond E. Powers
- ------------------------------------------- Executive Vice President, Treasurer, January 10, 2000
Raymond E. Powers Assistant Secretary and a Director
(Principal Financial Officer and Principal
Accounting Officer)
/s/ Edward L. Golden
- ------------------------------------------- Vice President and a Director January 10, 2000
Edward L. Golden
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fairport, State of New
York on January 10, 2000.
Simi Winery, Inc.
By: /s/ Thomas S. Summer
------------------------------------------
Thomas S. Summer, President and
Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Simi Winery, Inc.) to sign any or all amendments (including
post-effective amendments and any registration statement filed pursuant to Rule
462(b)) to this Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Thomas S. Summer
- ------------------------------------------- President, Treasurer and a Director January 10, 2000
Thomas S. Summer (Principal Executive Officer, Principal
Financial Officer and Principal Accounting
Officer)
/s/ Richard E. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Richard E. Sands
/s/ Robert S. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Robert S. Sands
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of St. Helena, State of
California on January 10, 2000.
SCV-EPI Vineyards, Inc.
By: /s/ Jean-Michel Vallete
------------------------------------------
Jean-Michel Valette
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of SCV-EPI Vineyards, Inc.) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Jean-Michel Valette
- -------------------------------------------- President and Chief Executive Officer January 10, 2000
Jean-Michel Valette (Principal Executive Officer)
/s/ William Skowronski
- ------------------------------------------- Vice President and Chief Financial Officer January 10, 2000
William Skowronski (Principal Financial Officer and Principal
Accounting Officer)
/s/ Richard E. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Richard E. Sands
/s/ Robert S. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Robert S. Sands
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of St. Helena, State of
California on January 10, 2000.
Franciscan Vineyards, Inc.
By: /s/ Jean-Michel Valette
------------------------------------------
Jean-Michel Valette
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Franciscan Vineyards, Inc.) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Jean-Michel Valette
- ------------------------------------------- President and Chief Executive Officer January 10, 2000
Jean-Michel Valette (Principal Executive Officer)
/s/ William Skowronski
- ------------------------------------------- Vice President and Chief Financial Officer January 10, 2000
William Skowronski (Principal Financial Officer and Principal
Accounting Officer)
/s/ Richard E. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Richard E. Sands
/s/ Robert S. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Robert S. Sands
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of St. Helena, State of
California on January 10, 2000.
Allberry, Inc.
By: /s/ Jean-Michel Valette
------------------------------------------
Jean-Michel Valette
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Allberry, Inc.) to sign any or all amendments (including
post-effective amendments and any registration statement filed pursuant to Rule
462(b)) to this Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Jean-Michel Valette
- ------------------------------------------- President and Chief Executive Officer January 10, 2000
Jean-Michel Valette (Principal Executive Officer)
/s/ William Skowronski
- ------------------------------------------- Vice President and Chief Financial Officer January 10, 2000
William Skowronski (Principal Financial Officer and Principal
Accounting Officer)
/s/ Richard E. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Richard E. Sands
/s/ Robert S. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Robert S. Sands
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of St. Helena, State of
California on January 10, 2000.
Cloud Peak Corporation
By: /s/ Jean-Michel Valette
------------------------------------------
Jean-Michel Valette
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Cloud Peak Corporation) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Jean-Michel Valette
- ------------------------------------------- President and Chief Executive Officer January 10, 2000
Jean-Michel Valette (Principal Executive Officer)
/s/ William Skowronski
- ------------------------------------------- Vice President and Chief Financial Officer January 10, 2000
William Skowronski (Principal Financial Officer and Principal
Accounting Officer)
/s/ Richard E. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Richard E. Sands
/s/ Robert S. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Robert S. Sands
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of St. Helena, State of
California on January 10, 2000.
M.J. Lewis Corp.
By: /s/ Jean-Michel Valette
------------------------------------------
Jean-Michel Valette
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of M.J. Lewis Corp.) to sign any or all amendments (including
post-effective amendments and any registration statement filed pursuant to Rule
462(b)) to this Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Jean-Michel Valette
- ------------------------------------------- President and Chief Executive Officer January 10, 2000
Jean-Michel Valette (Principal Executive Officer)
/s/ William Skowronski
- ------------------------------------------- Vice President and Chief Financial Officer January 10, 2000
William Skowronski (Principal Financial Officer and Principal
Accounting Officer)
/s/ Richard E. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Richard E. Sands
/s/ Robert S. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Robert S. Sands
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of St. Helena, State of
California on January 10, 2000.
Mt. Veeder Corporation
By: /s/ Jean-Michel Valette
------------------------------------------
Jean-Michel Valette
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Mt. Veeder Corporation) to sign any or all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b)) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Jean-Michel Valette
- ------------------------------------------- President and Chief Executive Officer January 10, 2000
Jean-Michel Valette (Principal Executive Officer)
/s/ William Skowronski
- ------------------------------------------- Vice President and Chief Financial Officer January 10, 2000
William Skowronski (Principal Financial Officer and Principal
Accounting Officer)
/s/ Richard E. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Richard E. Sands
/s/ Robert S. Sands
- ------------------------------------------- Vice President and a Director January 10, 2000
Robert S. Sands
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Amsterdam, the
Netherlands on January 10, 2000.
Canandaigua B.V.
By: /s/ G.A.L.R. Diepenhorst
------------------------------------------
G.A.L.R. Diepenhorst, Managing
Director
By: /s/ E.F. Switters
------------------------------------------
E.F. Switters, Managing Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard Sands, Robert Sands and Thomas
Summer and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities (including his capacity as a director
and/or officer of Canandaigua B.V.) to sign any or all amendments (including
post-effective amendments and any registration statement filed pursuant to Rule
462(b)) to this Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ G.A.L.R. Diepenhorst
- ------------------------------------------- Managing Director (Principal Executive January 10, 2000
G.A.L.R. Diepenhorst Officer)
/s/ E.F. Switters
- ------------------------------------------- Managing Director (Principal Financial January 10, 2000
E.F. Switters Officer and Principal Accounting Officer)
/s/ Thomas S. Summer
- ------------------------------------------- Authorized Representative in the United January 10, 2000
Thomas S. Summer States
</TABLE>
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
Number Description of Exhibit
- ------ ----------------------
4.1 Indenture, dated as of November 17, 1999, by and among the
Company, certain subsidiaries and Harris Trust and Savings Bank,
as Trustee
4.2 Registration Rights Agreement, dated as of November 17, 1999, by
and among the Company, the guarantors named therein, and J.P.
Morgan Securities Ltd.
4.3 Form of new notes (included in Exhibit 4.1)
5 Opinion of McDermott, Will & Emery
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Arthur Andersen LLP
23.2 Consent of KPMG LLP
23.3 Consent of McDermott, Will & Emery (included in Exhibit 5)
24 Powers of Attorney (included on the signature pages of the
registration statement)
25 Statement of Eligibility of Trustee on Form T-1
99.1 Form of Letter of Transmittal
99.2 Form of Letter to Registered Holders
99.3 Form of Letter to Clients and Instruction to Registered Holder
from Beneficial Owner
Exhibit 4.1
================================================================================
CANANDAIGUA BRANDS, INC.,
as Issuer,
the Guarantors named herein
and
HARRIS TRUST AND SAVINGS BANK,
as Trustee
-------
---------------------
Indenture
Dated as of November 17, 1999
---------------------
(pound)150,000,000.00
8 1/2% Senior Notes due 2009, Series A
8 1/2% Senior Notes due 2009, Series B
================================================================================
<PAGE>
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1)................................................. 7.10
(a)(2)................................................. 7.10
(a)(3)................................................. N.A.
(a)(4)................................................. N.A.
(b).................................................... 7.08; 7.10; 11.02
(b)(1)................................................. 7.10
(b)(9)................................................. 7.10
(c).................................................... N.A.
311(a).................................................... 7.11
(b).................................................... 7.11
(c).................................................... N.A.
312(a).................................................... 2.06
(b).................................................... 11.03
(c).................................................... 11.03
313(a).................................................... 7.06
(b)(1)................................................. 7.06
(b)(2)................................................. 7.06
(c).................................................... 7.06; 11.02
(d).................................................... 7.06
314(a).................................................... 4.02; 4.07; 11.02
(b).................................................... N.A.
(c)(1)................................................. 11.04; 11.05
(c)(2)................................................. 11.04; 11.05
(c)(3)................................................. N.A.
(d).................................................... N.A.
(e).................................................... 11.05
(f).................................................... N.A.
315(a).................................................... 7.01; 7.02
(b).................................................... 7.05; 11.02
(c).................................................... 7.01
(d).................................................... 6.04; 7.01; 7.02
(e).................................................... 6.10
316(a) (last sentence).................................... 2.10
(a)(1)(A).............................................. 6.04
(a)(1)(B).............................................. 6.03
(a)(2)................................................. 8.02
(b).................................................... 6.06
(c).................................................... 8.04
317(a)(1)................................................. 6.06
(a)(2)................................................. 6.08
(b).................................................... 2.05
318(a).................................................... 11.01
N.A. means Not Applicable
- --------------------
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions....................................................
Section 1.02. Incorporation by Reference of Trust Indenture Act..............
Section 1.03. Rules of Construction..........................................
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating................................................
Section 2.02. Execution and Authentication...................................
Section 2.03. Registrar and Paying Agents....................................
Section 2.04. Holders to Be Treated as Owners; Payments of Interest..........
Section 2.05. Paying Agent to Hold Money in Trust............................
Section 2.06. Holder Lists...................................................
Section 2.07. Transfer and Exchange; Book-Entry Provisions...................
Section 2.08. Replacement Notes..............................................
Section 2.09. Outstanding Notes..............................................
Section 2.10. Treasury Notes.................................................
Section 2.11. Temporary Notes................................................
Section 2.12. Cancellation...................................................
Section 2.13. Defaulted Interest.............................................
Section 2.14. CUSIP and ISIN Number; Common Code.............................
Section 2.15. Deposit of Moneys; Payments by Principal Paying Agent..........
Section 2.16. Restrictive Legends............................................
Section 2.17. Substitution of Currency.......................................
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.............................................
Section 3.02. Selection of Notes to Be Redeemed..............................
Section 3.03. Notice of Redemption...........................................
Section 3.04. Effect of Notice of Redemption.................................
Section 3.05. Deposit of Redemption Price....................................
Section 3.06. Notes Redeemed in Part.........................................
Section 3.07. Optional Redemption............................................
Section 3.08. Tax Redemption.................................................
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes...............................................
Section 4.02. Provision of Financial Statements .............................
Section 4.03. Waiver of Stay, Extension or Usury Laws........................
Section 4.04. Statement by Officers..........................................
Section 4.05. Corporate Existence............................................
Section 4.06. Maintenance of Office or Agency................................
Section 4.07. Compliance with Laws...........................................
Section 4.08. Maintenance of Properties and Insurance........................
Section 4.09. Payment of Taxes and Other Claims; Additional Amounts..........
Section 4.10. Limitation on Indebtedness.....................................
Section 4.11. Limitation on Restricted Payments..............................
Section 4.12. Limitation on Transactions with Affiliates.....................
Section 4.13. Limitations on Liens...........................................
Section 4.14. Limitation on Sale of Assets...................................
Section 4.15. Limitation on Guarantees by Restricted Subsidiaries............
Section 4.16. Purchase of Notes upon a Change of Control.....................
Section 4.17. Limitation on Restricted Subsidiary Capital Stock..............
Section 4.18. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries..........................
Section 4.19. Designation of Unrestricted Subsidiaries.......................
Section 4.20. [Intentionally omitted]........................................
Section 4.21. Waiver of Certain Covenants....................................
Section 4.22. Limitation of Applicability of Certain Covenants if Notes
Rated Investment Grade......................................
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Company or Any Guarantor May Consolidate, etc., Only on
Certain Terms...............................................
Section 5.02. Successor Substituted..........................................
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default..............................................
Section 6.02. Acceleration of Maturity; Rescission and Annulment.............
Section 6.03. Waiver of Past Defaults and Events of Default..................
Section 6.04. Control by Majority............................................
Section 6.05. Limitation on Suits............................................
Section 6.06. Rights of Holders to Receive Payment...........................
Section 6.07. Collection Suit by Trustee.....................................
Section 6.08. Trustee May File Proofs of Claim...............................
Section 6.09. Priorities.....................................................
Section 6.10. Undertaking for Costs..........................................
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee..............................................
Section 7.02. Rights of Trustee..............................................
Section 7.03. Individual Rights of Trustee...................................
Section 7.04. Trustee's Disclaimer...........................................
Section 7.05. Notice of Defaults.............................................
Section 7.06. Reports by Trustee to Holders..................................
Section 7.07. Compensation and Indemnity.....................................
Section 7.08. Replacement of Trustee.........................................
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.......
Section 7.10. Eligibility; Disqualification..................................
Section 7.11. Preferential Collection of Claims Against the Company..........
Section 7.12. Trustee's Application for Instructions from the Company........
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures and Agreements Without Consent of
Holders.....................................................
Section 8.02. Supplemental Indentures and Agreements with Consent of Holders.
Section 8.03. Compliance with TIA............................................
Section 8.04. Revocation and Effect of Consents..............................
Section 8.05. Notation on or Exchange of Notes...............................
Section 8.06. Trustee to Sign Amendments, etc................................
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Indenture........................
Section 9.02. Application of Trust Money.....................................
Section 9.03. Termination of the Company's Obligation........................
Section 9.04. Application of Trust Money.....................................
Section 9.05. Repayment to Company...........................................
Section 9.06. Reinstatement..................................................
ARTICLE 10
GUARANTEES
Section 10.01. Guarantors' Guarantee..........................................
Section 10.02. Continuing Guarantee; No Right of Set-Off; Independent
Obligation...................................................
Section 10.03. Guarantee Absolute.............................................
Section 10.04. Right to Demand Full Performance...............................
Section 10.05. Waivers........................................................
Section 10.06. The Guarantors Remain Obligated in Event the
Company Is No Longer Obligated to Discharge Indenture
Obligations.................................................
Section 10.07. Fraudulent Conveyance; Subrogation.............................
Section 10.08. Guarantee Is Additional to Other Security......................
Section 10.09. No Recourse Against Others.....................................
Section 10.10. No Bar to Further Actions......................................
Section 10.11. Failure To Exercise Rights Shall Not Operate as a Waiver; No
Suspension of Remedies......................................
Section 10.12. Trustee's Duties; Notice to Trustee............................
Section 10.13. Successors and Assigns.........................................
Section 10.14. Release of Guarantee...........................................
Section 10.15. Execution of Guarantee.........................................
ARTICLE 11
MISCELLANEOUS
Section 11.01. TIA Controls...................................................
Section 11.02. Notices........................................................
Section 11.03. Communications by Holders with Other Holders...................
Section 11.04. Certificate and Opinion as to Conditions Precedent.............
Section 11.05. Statements Required in Certificate and Opinion.................
Section 11.06. Rules by Trustee and Agents....................................
Section 11.07. Business Days; Legal Holidays..................................
Section 11.08. Governing Law..................................................
Section 11.09. No Adverse Interpretation of Other Agreements..................
Section 11.10. No Recourse Against Others.....................................
Section 11.11. Successors.....................................................
Section 11.12. Multiple Counterparts..........................................
Section 11.13. Table of Contents, Headings, etc...............................
Section 11.14. Separability...................................................
Section 11.15. Benefits of Indenture..........................................
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
<PAGE>
INDENTURE, dated as of November 17, 1999, by and between CANANDAIGUA
BRANDS, INC., a Delaware Corporation (the "Company"), the guarantors signatory
hereto (the "Guarantors") and the Harris Trust and Savings Bank, an Illinois
banking corporation, as trustee (the "Trustee").
The Company has duly authorized the creation of an issue of Series A
81/2% Senior Notes due 2009 (the "Initial Notes") and Series B 8 1/2% Senior
Notes due 2009 (the "Series B Notes" and together with the Initial Notes, the
"Notes") and, to provide therefor, the Company has duly authorized the execution
and delivery of this Indenture. All things necessary to make the Notes, when
duly issued and executed by the Company, and authenticated and delivered
hereunder, the legal, valid and binding obligations of the Company, and to make
this Indenture a legal, valid and binding agreement of the Company, have been
done.
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A Global Note(s)" means one or more Note(s) in the form set forth
in Exhibit A and bearing the Private Placement Legend that will be issued on the
Issue Date in a principal amount equal to the outstanding principal amount of
the Notes 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" has the meaning provided to such term in the
Registration Rights Agreement.
"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 Cedelbank" and "Customer Handbook" of Cedelbank, 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 Restricted 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 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 Cedelbank.
"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.
"Cedel" or "Cedelbank" means CedelBank, societe anonyme.
"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, contract 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).
"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 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 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 Reference 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 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, Euraclear or Cedelbank.
"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.
"DTC" means the Depository Trust Company.
"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.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant
to Section 2.07(e).
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"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 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
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 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.
"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
the 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 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 Indenture,
the Notes and the performance of all other obligations to the Trustee and the
Holders under this Indenture and the Notes, according to the terms hereof or
thereof.
"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 November 17, 1999.
"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 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 expenses 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 the Initial Notes and the Exchange Notes treated as a
single class of securities, as amended or supplemented from time to time in
accordance with the terms hereof, that are issued pursuant to this 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 Cedelbank,
Persons who have accounts with DTC, Euroclear or Cedelbank, respectively (and
with respect to DTC, shall include Euroclear and Cedelbank).
"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); (v) in the case of Marvin Sands
and in the event of the incompetence or death of any of the persons 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 Indenture; (vi) Investments in
existence on the date of this 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.
"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.
"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
Indenture.
"Redemption Price" means, with respect to any Note to be redeemed, the
price fixed for such redemption pursuant to the terms of this Indenture.
"Reference Gilt Dealer" means each of (x) J.P. Morgan Securities Ltd.
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.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of November 17, 1999 between the Company, the Guarantors named therein
and J.P. Morgan Securities, Ltd., as Initial Purchaser.
"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 that will be issued on
the Issue Date in a principal amount equal to the outstanding principal amount
of the Notes 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
such Private Exchange Notes (as defined in the Registration Rights Agreement) as
are in definitive form.
"Restricted Global Notes" means the 144A Global Note(s), the Regulation
S Global Note(s) and such Private Exchange Notes (as defined in the Registration
Rights Agreement) as are 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.
"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.
"S&P" means Standard & Poor's Ratings Group 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 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 1.02. 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.
SECTION 1.03. 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
SECTION 2.01. FORM AND DATING.
(a).......Global Notes. 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 Citibank
N.A., London, as custodian (in such capacity, 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 Citibank N.A., London, as common depositary (in such capacity, the "Common
Depositary") on behalf of Euroclear and Cedelbank. Unrestricted Global Notes
shall be issued in accordance with Section 2.07 (b)(iii) and 2.07(e) and shall
be deposited with the Common Depositary on behalf of Euroclear and Cedelbank.
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 Indenture; provided that, the maximum principal amount of all
Notes shall never exceed (pound)150.0 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.
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
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 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. 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
Indenture.
The Trustee shall authenticate Notes on the Issue Date in an aggregate
principal amount not to exceed (pound)75.0 million and thereafter, from time to
time, in an aggregate principal amount not to exceed (pound)150.0 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 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.
SECTION 2.03. REGISTRAR AND PAYING AGENTS.
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 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 Indenture and the agreement shall
implement the provisions of this 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 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 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.
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 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 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
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 Cedelbank 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
Cedelbank, 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 Cedelbank, 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.
(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 the Exchange Offer 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 the Exchange Offer.
(ii) Transfer of Book-Entry Interests 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 Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.07(b)(i) above and:
(A) such exchange is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the Book-Entry Interest to be
transferred, in the case of an exchange, certifies or is
deemed to have certified that it is none of (1) a
broker-dealer that acquired the Book-Entry Interests tendered
in the Exchange Offer directly from the Company or an
Affiliate of the Company, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company; or
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement or pursuant to another 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; or
(C) such transfer is effected by a broker-dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement.
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.
(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:
(A) such exchange is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder certifies or is deemed to have
certified that it is none of (1) a broker-dealer that acquired
the Book-Entry Interests tendered in the Exchange Offer
directly from the Company or an Affiliate of the Company, (2)
a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration (as defined in the Registration Rights
Agreement) in accordance with the Registration Rights
Agreement or pursuant to another 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; or
(C) any such transfer is effected by a Participating
Broker-Dealer (as defined in the Registration Rights
Agreement) pursuant to the Exchange Offer Registration
Statement (as defined in the Registration Rights Agreement) in
accordance with the Registration Rights Agreement;
(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 Offer. (i) Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, 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 Exchange Notes
and (z) they are not affiliates (as defined in Rule 144) of the Company, and
accepted for exchange 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) and accepted for exchange 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 the Exchange
Offer, (ii) deliver such Unrestricted Global Notes to the Common Depositary,
(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 the 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 the 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, 4.16 and
8.05 hereof).
(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 Indenture, as the Global Notes
or Definitive Notes surrendered upon such transfer or exchange.
(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.
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 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 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 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 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 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 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 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 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
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
Cedel, 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 Cedelbank (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
(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.
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 the Issue
Date; 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
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
SECTION 4.01. PAYMENT OF NOTES.
The Company will pay the principal, premium, if any, interest
(including all Additional Interest as provided in the Registration Rights
Agreement) and Additional Amounts (if any) on the Notes on the dates and in the
manner provided in the Notes and this Indenture. An installment of principal or
interest shall be considered paid 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 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 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 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 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 desirable 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 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 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 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;
(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 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 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 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
(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 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 the date of
this Indenture 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 (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 the date of
this Indenture 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 the date of
this Indenture 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
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 the Issue Date, 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 the Issue Date in
accordance with Section 4.19.
(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;
(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 Indenture or acquired after the date of this
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 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 date of this Indenture;
(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 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 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 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.
(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 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 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 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 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 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.
SECTION 4.15. LIMITATION ON GUARANTEES BY RESTRICTED SUBSIDIARIES.
In the event the Company (i) organizes or acquires any Domestic
Restricted Subsidiary after the Issue Date 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
Indenture pursuant to which it will become a Guarantor under 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 Indenture, or if, subject to the requirements of Article Five of this
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
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 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.
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;
(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 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 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 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 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 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 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 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
(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 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 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
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:
(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 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 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 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 the Indenture and this 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
satisfactory to the Trustee, all the obligations of such Guarantor
under its Guarantee and this 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 the Indenture
and this 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 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 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
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 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 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 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);
(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
(i) all sums paid or advanced by the Trustee under
Section 7.07 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 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 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 Indenture, but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 6.04. CONTROL BY MAJORITY.
Subject to Section 2.10, the Holders of a majority in principal amount
of the outstanding Notes have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee by this Indenture. The Trustee,
however, may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines may be unduly prejudicial to the rights
of another Holder not taking part in such direction, and the Trustee shall have
the right to decline to follow any such direction if the Trustee, being advised
by counsel, determines that the action so directed may not lawfully be taken or
if the Trustee in good faith shall, by a Trust Officer, determine that the
proceedings so directed may involve it in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. In the event the Trustee takes any action or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification reasonably satisfactory against any loss or expense caused by
taking such action or following such direction. This Section 6.04 shall be in
lieu of ss. 316(a)(1)(A) of the TIA, and ss. 316(a)(1)(A) of the TIA is hereby
expressly excluded from this Indenture and the Notes, as permitted by the TIA.
SECTION 6.05. LIMITATION ON SUITS.
Subject to Section 6.07 below, no Holder has any right to institute any
proceeding with respect to this Indenture or any remedy thereunder unless:
(1) the Holder gives the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the outstanding Notes make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense which may be incurred in compliance with such request;
(4) the Trustee fails to institute such proceeding within 60
calendar days after receipt of such notice and the offer of indemnity;
and
(5) the Trustee has not received directions inconsistent with
such written request during such 60-day period by the Holders of a
majority in aggregate principal amount of the outstanding Notes.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 6.06. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, or premium, if any, or accrued
interest of any Note held by such Holder on or after the respective due dates
expressed in such Note, or to bring suit for the enforcement of any such payment
on or after such respective dates, is absolute and unconditional and shall not
be impaired or affected without the consent of the Holder.
SECTION 6.07. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal, premium or interest
specified in Section 6.01(a) or (b) hereof occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount of unpaid principal, premium and accrued
interest remaining unpaid, together with, to the extent that payment of such
interest is lawful, interest on overdue principal and interest on overdue
installments of interest, in each case at the rate set forth in the Notes, and
such further amounts as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.08. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders allowed in
any judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same after deduction of its charges and
expenses to the extent that any such charges and expenses are not paid out of
the estate in any such proceedings and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceedings.
SECTION 6.09. PRIORITIES.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07
hereof;
SECOND: if the Holders are forced to proceed against the
Company directly without the Trustee, to Holders for their collection
costs;
THIRD: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest as to each, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes; and
FOURTH: to the Company.
The Trustee, upon prior written notice to the Company, may fix a record
date (in the case of Definitive Notes) and payment date for any payment to
Holders pursuant to this Section 6.09.
SECTION 6.10. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.10 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If a Default or an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise thereof as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of a Default or an Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine those certificates
and opinions specifically required herein to determine whether or not
they conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive from such Holders an indemnity
reasonably satisfactory to it against such risk, liability, loss, fee or expense
which might be incurred by it in compliance with such request or direction.
(e) Whether or not herein expressly provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01 hereof:
(a) The Trustee may conclusively rely on any document (whether
in its original or facsimile form) reasonably believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in any such
document.
(b) Before the Trustee acts or refrains from acting with
respect to any matters contemplated by this Indenture or the Notes it
may consult with counsel and may require an Officers' Certificate or an
Opinion of Counsel, or both, which shall conform to the provisions of
Section 11.05 hereof. The Trustee shall be fully protected and shall
not be liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.
(c) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder through its attorneys and
agents and shall not be responsible for the misconduct or negligence of
any attorney or agent (other than an agent who is an employee of the
Trustee) so long as the appointment of such agent was made with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be
full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such
counsel.
(f) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a request or order of the Company in
writing and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(g) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(h) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability
or additional liability of any kind by reason of such inquiry or
investigation;
(i) the Trustee shall not be deemed to have notice of any
Default of Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture; and
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may make loans to, accept deposits from, perform
services for or otherwise deal with the Company, or any Affiliates thereof, with
the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. The Trustee, however, shall be subject to Sections 7.10 and
7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company' use of the proceeds from the sale of Notes or any
money paid to the Company pursuant to the terms of this Indenture and it shall
not be responsible for any statement of the Company in this Indenture or the
Notes other than the Trustee's certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs and is continuing and if a
Responsible Officer of the Trustee has actual knowledge of such Default or Event
of Default, the Trustee shall mail to each Holder notice of the uncured Default
or Event of Default within 30 days after such Default or Event of Default
occurs. Except in the case of a Default or an Event of Default in payment of
principal of, premium or interest on, any Note, including an accelerated payment
and the failure to make payment on the Change of Control Payment Date pursuant
to a Change of Control Offer or on the Excess Proceeds Payment Date pursuant to
an Excess Proceeds Offer and, except in the case of a failure to comply with
Article Five hereof, the Trustee may withhold the notice if and so long as its
Board of Directors, the executive committee of its Board of Directors or a
committee of its directors and/or Trust Officers in good faith determines that
withholding the notice is in the interest of the Holders. This Section 7.05
shall be in lieu of the proviso to Section 315(b) of the TIA, and such proviso
of Section 315(b) of the TIA is hereby expressly excluded from this Indenture
and the Notes, as permitted by the TIA.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
If required by TIA Section 313(a), within 60 days after September 15 of
any year, commencing the September 15 following the date of this Indenture, the
Trustee shall deliver to each Holder a brief report dated as of such May 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA Section
313(b), (c) and (d).
Reports pursuant to this Section 7.06 shall be transmitted by mail:
(1) to all Holders of Definitive Notes, as the names and
addresses of such Holders appear in the Register;
(2) to such Holders as have, within the two years preceding
such transmission, filed their names and addresses with the Trustee for
that purpose; and
(3) the Company shall promptly notify the Trustee when the
Notes are listed on any stock exchange or of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
for the Trustee's services. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all fees and expenses, including
out-of-pocket expenses incurred or made by it in connection with the performance
of its duties under this Indenture or in connection with the collection of any
funds. Such expenses shall include the reasonable fees and expenses of the
Trustee's agents and counsel.
The Company shall fully indemnify each of the Trustee and any
predecessor Trustee and its agents, employees, stockholders and directors and
officers for, and hold them harmless against, any loss, liability claim, damage
or expense (including reasonable fees and expenses of its agents and counsel)
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim (whether asserted by the Company, or any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder except for such loss as determined by a court of
competent jurisdiction to have been caused by the negligence, bad faith or
willful misconduct on their part. The Trustee shall notify the Company promptly,
in writing, of any claim asserted against the Trustee for which it may seek
indemnity. At the Trustee's sole discretion, the Company shall defend the claim
and the Trustee shall cooperate and may participate in the defense; provided
that any settlement of a claim shall be approved in writing by the Trustee. The
Company need not pay for any settlement made without its written consent, which
consent shall not be unreasonably withheld. The Company need not reimburse any
expense or indemnify against any loss or liability to the extent incurred by the
Trustee through its negligence, bad faith or willful misconduct.
To secure the Company' payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of, premium or interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign at any time by so notifying the Company in
writing. The Holders of a majority in principal amount of the outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing
and may appoint a successor Trustee. The Company may remove the Trustee at its
election if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall deliver notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER OR CONVERSION.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, subject to this Article Seven, the successor corporation without
any further act shall be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee which shall be eligible to
act as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. If the Trustee has or shall
acquire any "conflicting interest" within the meaning of TIA Section 310(b), the
Trustee and the Company shall comply with the provisions of TIA Section 310(b);
provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.10, the Trustee shall resign
promptly in the manner and with the effect hereinbefore specified in this
Article Seven.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein. The provisions of TIA Section 311 shall apply to the Company as
obligors of the Notes.
SECTION 7.12. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY.
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any Officer of the Company actually receives
such application, unless any such Officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE 8
SUPPLEMENTAL INDENTURES
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 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 Indenture under the
Trust Indenture Act, as contemplated by Section 8.03 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 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
Indenture or of modifying in any manner the rights of the Holders under this
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:
(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
Indenture or certain defaults hereunder and their consequences provided
for in this 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 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 Indenture; or
(f) amend or modify any of the provisions of this 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.
SECTION 8.03. COMPLIANCE WITH TIA.
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
SECTION 8.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or portion of such Note by
notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes have consented (and not theretofore revoked
such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (a)
through (f) of Section 8.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; provided that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal of and interest
on a Note, on or after the respective due dates expressed in such Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates without the consent of such Holder.
SECTION 8.05. NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement, or waiver changes the terms of a Note, the
Trustee may request the Holder to deliver it to the Trustee. In such case, the
Trustee shall place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determine, in exchange for the Note the Company shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment supplement or waiver.
SECTION 8.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article Eight is
authorized or permitted by this Indenture and that such amendment, supplement or
waiver constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms (subject to customary exceptions). The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture 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 Indenture, 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
cancelled 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 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 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 Indenture, the
obligations of the Company to the Trustee under Section 7.07 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 the Indenture shall survive.
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 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 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 Indenture, there has been
a change in the applicable federal income tax law, in either case to the effect
that, and based thereon such opinion of counsel shall confirm that, the holders
of the 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, 7.07, 7.08, 9.02 and
9.05 of this 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
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 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 Indenture solely to the payment of principal of and
interest on the Notes.
SECTION 9.05. REPAYMENT TO COMPANY.
Subject to 7.07 and 9.03, 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 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 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
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 Indenture including those set forth in Article Five.
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 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.
(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 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 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
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;
(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.
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 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 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 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.
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 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.
SECTION 10.12. TRUSTEE'S DUTIES; NOTICE TO TRUSTEE.
(a) Any provision in this Article Ten or elsewhere in this 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 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
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
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.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TIA CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
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
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. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.05 below) stating that, in the
opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 11.05 below) stating that, in the opinion of such
counsel, all such conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE AND OPINION.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition and the definitions
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, it or he
has made such examination or investigation as is necessary to enable
such person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such covenant or condition has been complied with.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar and Paying Agent may make reasonable rules for their
functions.
SECTION 11.07. BUSINESS DAYS; LEGAL HOLIDAYS.
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a governmentally-recognized holiday or a day
on which banking institutions are not required to be open in such place. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 11.08. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture except as expressly provided herein.
SECTION 11.10. 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 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 11.11. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee, any additional trustee and
any Paying Agents in this Indenture shall bind its successor.
SECTION 11.12. MULTIPLE COUNTERPARTS.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 11.14. SEPARABILITY.
Each provision of this 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 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 11.15. BENEFITS OF INDENTURE.
Nothing in this 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 Indenture.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed all as of the date and year first written above.
CANANDAIGUA BRANDS, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Senior Vice President and Chief
Financial Officer
BATAVIA WINE CELLARS, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Treasurer
BARTON INCORPORATED
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
BARTON BRANDS, LTD.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
BARTON BEERS, LTD.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
BARTON BRANDS OF CALIFORNIA, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
BARTON BRANDS OF GEORGIA, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
BARTON DISTILLERS IMPORT CORP.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
BARTON FINANCIAL CORPORATION
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
STEVENS POINT BEVERAGE CO.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
CANANDAIGUA LIMITED
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Finance Director
MONARCH IMPORT COMPANY
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
CANANDAIGUA WINE COMPANY, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Treasurer
THE VIKING DISTILLERY, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
CANANDAIGUA EUROPE LIMITED
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Treasurer
ROBERTS TRADING CORP.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: President and Treasurer
POLYPHENOLICS, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
FRANCISCAN VINEYARDS, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
ALLBERRY, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
CLOUD PEAK CORPORATION
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
M.J. LEWIS CORP.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
MT. VEEDER CORPORATION
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
SCV-EPI VINEYARDS, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
SIMI WINERY, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
CANANDAIGUA B.V.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Authorized Representative
BARTON CANADA, LTD.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By: /s/ D.G. Donovan
------------------------------------
Name: D.G. Donovan
Title: Assistant Vice President
<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 THE INDENTURE.<F1>
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.<F2>
CANANDAIGUA BRANDS, INC.
---------------
8 1/2% SENIOR NOTE DUE 2009
[CUSIP/ISIN] NO.
No. (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 November 17, 1999, 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 May 15, 2000, at the rate of
- -------------------
<F1> Include this legend on any Global Security.
<F2> Include this legend on any Global Security issued to Cede & Co. as nominee
of The Depository Trust Company.
<PAGE>
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.
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 Cedelbank, societe anonyme 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 the Indenture 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:
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 8 1/2% Senior Notes due 2009 referred to in the
within-mentioned Indenture.
As Trustee, Harris Trust and Savings Bank
By:
------------------------------------
Name:
Title:
<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)150,000,000, issued under an
indenture (the "Indenture") dated as of November 17, 1999, among the Company,
the Guarantors and Harris Trust and Savings Bank, as trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture) and
all 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 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.
<PAGE>
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.
Pursuant to the Registration Rights Agreement by and between the
Company and the Initial Purchaser, the Company will be obligated to consummate
an exchange offer pursuant to which the Holder of this Note shall have the right
to exchange this Note for the Company's Series B 8 1/2% Senior Notes due 2009
(the "Exchange Notes"), which have been registered under the Securities Act, in
like principal amount and having terms identical in all material respects to the
Initial Notes. The Holders of the Initial Notes shall be entitled to receive
certain Additional Interest payments in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement.<F3>
This Global Note will be exchangeable for Definitive Notes only (i) (in
whole but not in part) if either DTC, the Euroclear or Cedelbank 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 Cedelbank, 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
- -------------------
<F3> Include this paragraph in any Restricted Global Notes.
<PAGE>
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).
"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 the 144A/Regulation S/Unrestricted
Global Note for a part of this Global Note or (ii) any exchange of a part of
this Global Note for a part of the 144A/Regulation S/Unrestricted Global Note or
(iii) any exchange of a part of this Global Note for Definitive Notes or (iv)
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 the Indenture, 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 Definitive [or for an
Unrestricted Global Note] 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
[or Unrestricted Global Note, as the case may be].
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.
<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}
<PAGE>
THE SCHEDULES
PART I
PAYMENTS OF PRINCIPAL, PREMIUM AND INTEREST
The following payments on this Global Note have been made:
<TABLE>
<CAPTION>
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)
<S> <C> <C> <C> <C> <C>
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
- ---- --------- ----------- --------- ------------------- -----------
</TABLE>
<PAGE>
PART II
EXCHANGES
AND PURCHASES AND CANCELLATIONS
The following exchanges of a part of the 144A/Regulation S/Unrestricted Global
Note for a like part of this Global Note [, of this Global Note for a like part
of the [144A/Regulation S/Unrestricted] Global Note/ of this Global Note for a
part of a Series B Global Note] and 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 the
144A/Regulation
S/Unrestricted
Global Note
exchanged
for a like part
of this
Global Note
or vice versa or of
this Global Note Part of
for a like part of principal
a Series B amount of Aggregate principal
Global Note or this amount of this Notation
of this Global Global Note Global Note made on
Date Note for Definitive purchased following such exchange or behalf of
made Notes and canceled purchase and cancellation the Company
(pound) (pound) (pound) (pound)
<S> <C> <C> <C> <C>
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
- ------- -------------------------- ------------- ------------------------ -------------------
</TABLE>
<PAGE>
EXHIBIT B
---------
{Face of Note}
CANANDAIGUA BRANDS, INC.
---------------
8 1/2% SENIOR NOTE DUE 2009
[CUSIP/ISIN] NO.
No. (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 November 17, 1999, 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 May 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.
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, as operator of the Euroclear system
or Cedelbank, societe anonyme, 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 the Indenture 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:
Attest:
- ----------------------------------
Authorized Officer
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 8 1/2% Senior Notes due 2009 referred to in the
within-mentioned Indenture.
As Trustee, Harris Trust and Savings Bank
By:
------------------------------------
Name:
Title:
<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)150,000,000, issued under an
indenture (the "Indenture") dated as of November 17, 1999, among the Company,
the Guarantors and Harris Trust and Savings Bank, as trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture) and
all 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 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.
<PAGE>
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.
Pursuant to the Registration Rights Agreement by and between the
Company and the Initial Purchaser, the Company will be obligated to consummate
an exchange offer pursuant to which the Holder of this Note shall have the right
to exchange this Note for the Company's Series B 8 1/2% Senior Subordinated
Notes due 2009 (the "Exchange Notes"), which have been registered under the
Securities Act, in like principal amount and having terms identical in all
material respects to the Initial Notes. The Holders of the Initial Notes shall
be entitled to receive certain Additional Interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.<F1>
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.
- -------------------
<F1> Include this paragraph only in Restricted Global Notes.
<PAGE>
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.
<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}
<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 this 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 the
Indenture. 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:
--------------------------------------
BARTON BRANDS OF CALIFORNIA, INC.
By:
--------------------------------------
BARTON BRANDS OF GEORGIA, INC.
By:
--------------------------------------
BARTON DISTILLERS IMPORT CORP.
By:
--------------------------------------
THE VIKING DISTILLERY, INC.
By:
--------------------------------------
BARTON FINANCIAL CORPORATION
By:
--------------------------------------
STEVENS POINT BEVERAGE CO.
By:
--------------------------------------
CANANDAIGUA LIMITED
By:
--------------------------------------
MONARCH IMPORT COMPANY
By:
--------------------------------------
CANANDAIGUA WINE COMPANY, INC.
By:
--------------------------------------
CANANDAIGUA EUROPE LIMITED
By:
--------------------------------------
ROBERTS TRADING CORP.
By:
--------------------------------------
POLYPHENOLICS, INC.
By:
--------------------------------------
FRANCISCAN VINEYARDS, INC.
By:
--------------------------------------
ALLBERRY, INC.
By:
--------------------------------------
CLOUD PEAK CORPORATION
By:
--------------------------------------
M.J. LEWIS CORP.
By:
--------------------------------------
MT. VEEDER CORPORATION
By:
--------------------------------------
SCV-EPI VINEYARDS, INC.
By:
--------------------------------------
SIMI WINERY, INC.
By:
--------------------------------------
CANANDAIGUA B.V.
By:
--------------------------------------
BARTON CANADA, LTD.
By:
--------------------------------------
<PAGE>
EXHIBIT D
---------
FORM OF CERTIFICATE OF TRANSFER
-------------------------------
Re: Canandaigua Brands, Inc. ("the Company")
8 1/2% Senior Notes due 2009 (the "Notes")
------------------------------------------
Reference is hereby made to the Indenture, dated as of November 17,
1999 (the "Indenture"), between the Company, and Harris Trust and Savings Bank,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
_______________________________ (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
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 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:
<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.
<PAGE>
EXHIBIT E
---------
FORM OF CERTIFICATE OF EXCHANGE
(BETWEEN BOOK-ENTRY INTERESTS AND DEFINITIVE NOTES)
Re: Canandaigua Brands, Inc. ("the Company")
8 1/2% Senior Notes due 2009 (the "Notes")
------------------------------------------
Reference is hereby made to the Indenture, dated as of November 17,
1999 (the "Indenture"), between the Company, and The Bank of New York, as
trustee. Capitalised 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:
--------------------------------
--------------------------------
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:
<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.
All capitalized terms used herein that are defined in, or by reference
in, the Indenture among Canandaigua Brands, Inc., a Delaware corporation (the
"Company"), the guarantors a party thereto and Harris Trust and Savings Bank, as
trustee, dated as of November 17, 1999 (the "Indenture"), have the meanings
assigned to such terms therein, or by reference therein, unless otherwise
defined.
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.
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.
By:
--------------------------------------
Name:
Title:
<PAGE>
BORROWINGS, MATURITIES, AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount
Amount of Maturity of Principal Unpaid
Borrowing/ Borrowing/ Paid or Principal Notation
Date Principal Principal Prepaid Balance Made By
---- --------- --------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of November 17, 1999
By and Among
CANANDAIGUA BRANDS, INC.,
as Issuer
and
THE GUARANTORS named herein
and
J.P. MORGAN SECURITIES LTD.,
as Initial Purchaser
(pound)75,000,000
8 1/2% Senior Notes due 2009
<PAGE>
TABLE OF CONTENTS
Page
----
1. Definitions...........................................................1
2. Exchange Offer........................................................5
3. Shelf Registration....................................................9
4. Additional Interest..................................................10
5. Registration Procedures..............................................12
6. Registration Expenses................................................21
7. Indemnification......................................................22
8. Rules 144 and 144A...................................................24
9. Underwritten Registrations...........................................25
10. Miscellaneous........................................................25
(a) No Inconsistent Agreements..................................25
(b) Adjustments Affecting Registrable Notes.....................25
(c) Amendments and Waivers......................................26
(d) Notices.....................................................26
(e) Successors and Assigns......................................27
(f) Counterparts................................................27
(g) Headings....................................................27
(h) Governing Law; Jurisdiction.................................27
(i) Severability................................................28
(j) Securities Held by the Issuers or Their Affiliates..........28
(k) Third Party Beneficiaries...................................28
(l) Entire Agreement............................................28
(m) Additional Amounts of Securities............................28
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated
as of November 17, 1999, by and among CANANDAIGUA BRANDS, INC., a Delaware
corporation (the "Company"), Batavia Wine Cellars, Inc., Canandaigua Wine
Company, Inc., Canandaigua Europe Limited, Roberts Trading Corp., Polyphenolics,
Inc., Barton Distillers Import Corp., and SCV-EPI Vineyards, Inc., 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. and The Viking
Distillery, Inc., each a Georgia corporation, Stevens Point Beverage Co., a
Wisconsin corporation, Monarch Import Company and Barton Canada, Ltd., each an
Illinois corporation, Simi Winery, Inc., Allberry, Inc., Cloud Peak Corporation,
M.J. Lewis Corp. and Mt. Veeder Corporation, each a California Corporation,
Canandaigua Limited, a corporation organized under the laws of England and
Wales, and Canandaigua B.V., a corporation organized under the laws of the
Netherlands (collectively, the "Guarantors") and J.P. MORGAN SECURITIES LTD.
(the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of November 10, 1999 (the "Purchase Agreement"), by and
among the Company, the Guarantors and the Initial Purchaser, which provides for
the sale by the Company to the Initial Purchaser of an aggregate of
(pound)75,000,000 aggregate principal amount of the Company's 8 1/2% Senior
Notes due 2009 (the "Notes"). The Notes are being issued pursuant to the
Indenture, dated as of November 17, 1999, (the "Indenture"), among the Company,
Guarantors and Harris Trust and Savings Bank, as Trustee. The Notes are
guaranteed (the "Guarantees") by the Guarantors. The Notes and the Guarantees
are collectively referred to herein as the "Securities".
In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Company and the Guarantors have agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchaser and any subsequent holder or holders of the Securities. The execution
and delivery of this Agreement is a condition to the Initial Purchaser's
obligation to purchase the Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
Additional Interest: See Section 4 hereof.
Advice: See Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2 hereof.
Business Day: Any day that is not a Saturday, Sunday or a day
on which banking institutions in New York are authorized or required by law to
be closed.
Company: See the introductory paragraphs hereto.
Effectiveness Date: The 180th day after the Issue Date;
provided, however, that with respect to any Shelf Registration, the
Effectiveness Date shall be the 60th day after the Filing Date with respect
thereto.
Effectiveness Period: See Section 3 hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2 hereof.
Exchange Offer: See Section 2 hereof.
Exchange Offer Registration Statement: See Section 2 hereof.
Filing Date: (A) If no Exchange Offer Registration Statement
has been filed by the Issuer pursuant to this Agreement, the 90th day after the
Issue Date; and (B) with respect to a Shelf Registration Statement, the 60th day
after the delivery of a Shelf Notice as required pursuant to Section 2(c)
hereof.
Guarantees: See introductory paragraphs hereto.
Guarantors: See introductory paragraphs hereto.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: See introductory paragraphs hereto.
Initial Purchaser: See introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(n) hereof.
Issue Date: November 17, 1999.
NASD: See Section 5(s) hereof.
Notes: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2 hereof.
Person: An individual, trustee, corporation, partnership,
joint stock company, trust, unincorporated association, union, business
association, firm or other legal entity.
Private Exchange: See Section 2 hereof.
Private Exchange Notes: See Section 2 hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act and any term sheet filed pursuant
to Rule 434 under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereto.
Records: See Section 5(n) hereof.
Registrable Notes: Each Security upon its original issuance
and at all times subsequent thereto, each Exchange Note as to which Section
2(c)(iv) hereof is applicable upon original issuance and at all times subsequent
thereto and each Private Exchange Note (and related Guarantees) upon original
issuance thereof and at all times subsequent thereto, until in the case of any
such Security, Exchange Note or Private Exchange Note, as the case may be, the
earliest to occur of (i) a Registration Statement (other than, with respect to
any Exchange Note as to which Section 2(c)(iv) hereof is applicable, the
applicable Exchange Offer Registration Statement) covering such Security,
Exchange Note or such Private Exchange Note has been declared effective by the
SEC and such Security, Exchange Note or such Private Exchange Note, as the case
may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Security has been exchanged for an Exchange Note or
Exchange Notes (and related Guarantees) pursuant to an Exchange Offer which may
be resold without restriction under state and federal securities laws, (iii)
such Security, Exchange Note or Private Exchange Note (and related Guarantees),
as the case may be, ceases to be outstanding for purposes of the Indenture, or
(iv) such Security, Exchange Note or Private Exchange Note (and related
Guarantees), as the case may be, may be resold without restriction pursuant to
Rule 144 (or any similar provision then in force) under the Securities Act.
Registration Statement: Any registration statement of the
Company and the Guarantors that covers any of the Securities, the Exchange Notes
(and related Guarantees) or the Private Exchange Notes (and related Guarantees)
filed with the SEC under the Securities Act, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities: See the introductory paragraphs hereof.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2 hereof.
Shelf Registration: See Section 3(b) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Notes (and the related
Guarantees) and Private Exchange Notes (and the related Guarantees) (if any).
Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Exchange Offer. (a) The Company and the Guarantors shall
file with the SEC, no later than the Filing Date, a Registration Statement (the
"Exchange Offer Registration Statement") on an appropriate registration form
with respect to a registered offer (the "Exchange Offer") to exchange any and
all of the Registrable Notes for a like aggregate principal amount of debt
securities of the Company (guaranteed by the Guarantors) which are identical in
all material respects to the Securities (the "Exchange Notes"), except that (i)
the Exchange Notes (and the Guarantors' Guarantees thereof) shall have been
registered pursuant to an effective Registration Statement under the Securities
Act, shall not contain provisions for Additional Interest, and shall contain no
restrictive legend thereon, (ii) interest thereon shall accrue from the last
date on which interest was paid on the Notes or, if no such interest has been
paid, from the Issue Date, and which are entitled to the benefits of the
Indenture or a trust indenture which is identical in all material respects to
the Indenture (other than such changes to the Indenture or any such identical
trust indenture as are necessary to comply with any requirements of the SEC to
effect or maintain the qualification thereof under the TIA) and which, in either
case, has been qualified under the TIA. The Exchange Offer shall comply with all
applicable tender offer rules and regulations under the Exchange Act and other
applicable law. The Company and the Guarantors shall use their respective best
efforts to (x) cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act on or before the Effectiveness Date; (y) keep
the Exchange Offer open for not less than 20 Business Days (or longer if
required by applicable law) after the date that notice of such Exchange Offer is
mailed to Holders; and (z) consummate such Exchange Offer on or prior to the
210th day following the Issue Date. For purposes of this Section 2(a) only, if
after the Exchange Offer Registration Statement is initially declared effective
by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder
is interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, the Exchange Offer
Registration Statement shall be deemed not to have become effective for purposes
of this Agreement during the period of such interference, until the Exchange
Offer may legally resume.
Each Holder who participates in the Exchange Offer will be
required, as a condition to its participation in the Exchange Offer, to
represent to the Company in writing (which may be contained in the applicable
letter of transmittal) that (i) any Exchange Notes received by it will be
acquired in the ordinary course of its business, (ii) at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act, (iii) such Holder is
not an affiliate of the Company or any Guarantor within the meaning of the
Securities Act, (iv) if such Holder is not a broker-dealer, such Holder is not
engaged in, and does not intend to engage in, the distribution of Exchange
Notes, (v) if such Holder is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Securities that were acquired as a result of
market-making or other trading activities, such Holder will deliver a prospectus
in connection with any resale of such Exchange Notes and (vi) such Holder is not
acting on behalf of any Persons who could not truthfully make the foregoing
representations.
Upon consummation of the Exchange Offer in accordance with
this Section 2, the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Notes that are Private
Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and
Exchange Notes held by Participating Broker-Dealers, and the Company and the
Guarantors shall have no further obligation to register Registrable Notes (other
than Private Exchange Notes and other than in respect of any Exchange Notes as
to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included
in the Exchange Offer Registration Statement.
(b) The Company and the Guarantors shall include within the
Prospectus contained in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," reasonably acceptable to the Initial Purchaser,
which shall contain a summary statement of the positions taken or policies made
by the staff of the SEC with respect to the potential "underwriter" status of
any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act) of Exchange Notes received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies represent the prevailing views of the staff of the SEC.
Such "Plan of Distribution" section shall also expressly permit the use of the
Prospectus by all Persons subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Notes in compliance with the Securities Act.
The Company and the Guarantors shall use their respective best
efforts to keep the Exchange Offer Registration Statement effective and to amend
and supplement the Prospectus contained therein in order to permit such
prospectus to be lawfully delivered by all Persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as is
necessary to comply with applicable law in connection with any resale of the
Exchange Notes covered thereby; provided, however, that such period shall not
exceed 180 days after such Exchange Offer Registration Statement is declared
effective (or such longer period if extended pursuant to the last paragraph of
Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchaser holds any Notes acquired by them and having, or which are reasonably
likely to be determined to have, the status of an unsold allotment in an initial
distribution, the Company and the Guarantors upon the request of the Initial
Purchaser shall simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (each, a
"Private Exchange") for such Notes held by the Initial Purchaser, a like
principal amount of debt securities of the Company (guaranteed by the
Guarantors) that are identical in all material respects to the Exchange Notes
(the "Private Exchange Notes") except for the placement of a restrictive legend
on such Private Exchange Notes (and which are issued pursuant to the same
indenture as the Exchange Notes). If possible, the Private Exchange Notes shall
bear the same CUSIP number as the Exchange Notes.
In connection with each Exchange Offer, the Company and the
Guarantors shall:
(1) mail, or cause to be mailed, to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part
of the Exchange Offer Registration Statement relating to such Exchange
Offer, together with an appropriate letter of transmittal and related
documents;
(2) use their respective best efforts to keep the Exchange
Offer open for not less than 20 Business Days after the date that
notice of the Exchange Offer is mailed to Holders (or longer, if
required by applicable law);
(3) utilize the services of a depositary for the Exchange
Offer which may be the Trustee or an affiliate thereof;
(4) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last Business Day
on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all
applicable laws, rules and regulations of the United Kingdom and the
United States.
As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Company and the Guarantors shall:
(1) accept for exchange all Registrable Notes validly tendered
and not validly withdrawn pursuant to the Exchange Offer and the
Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable
Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder of Notes, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Securities of such Holder
so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) no action or proceeding is
instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Company and the Guarantors to proceed with
the Exchange Offer or the Private Exchange and no material adverse development
has occurred in any existing action or proceeding with respect to the Company or
the Guarantors that would materially impair the ability of the Company and the
Guarantors to consummate the Exchange Offer or the Private Exchange and (iii)
all governmental approvals have been obtained, which approvals the Company and
the Guarantors deem necessary for the consummation of the Exchange Offer or the
Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event has been qualified under the
TIA or is exempt from such qualification and shall provide that the Exchange
Notes shall not be subject to the transfer restrictions set forth in the
Indenture. The Indenture or such indenture shall provide that the Exchange
Notes, the Private Exchange Notes and the Securities shall vote and consent
together on all matters as one class and that none of the Exchange Notes, the
Private Exchange Notes or the Securities will have the right to vote or consent
as a separate class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the Company and the
Guarantors are not permitted to effect the Exchange Offer, (ii) the Exchange
Offer is not consummated within 210 days after the Issue Date, (iii) any holder
of Private Exchange Notes so requests, or (iv) in the case of any Holder that
participates in the Exchange Offer, such Holder does not receive Exchange Notes
on the date of the exchange that may be sold without restriction under state and
federal securities laws (other than due solely to the status of such Holder as
an affiliate of the Company or any Guarantor within the meaning of the
Securities Act), in the case of each of clauses (i) to and including (iv) of
this sentence, then the Company and the Guarantors shall promptly deliver to the
Holders and the Trustee written notice thereof (the "Shelf Notice") and shall
file a Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration. If at any time a Shelf Notice is
delivered as contemplated by Section 2(c) hereof, then:
(a) Shelf Registration. The Company and the Guarantors shall
file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable Notes not
exchanged in the Exchange Offer, Private Exchange Notes and Exchange Notes to
which Section 2(c)(iv) is applicable (the "Initial Shelf Registration"). The
Company and the Guarantors shall use their respective best efforts to file with
the SEC the Initial Shelf Registration on or prior to the Filing Date. The
Initial Shelf Registration shall be on Form S-1 or another appropriate form
permitting registration of such Registrable Notes for resale by Holders in the
manner or manners designated by them (including, without limitation, one or more
underwritten offerings). Neither the Company nor any Guarantor shall permit any
debt securities or securities convertible into or exchangeable for debt
securities other than the Registrable Notes to be included in the Initial Shelf
Registration or any Subsequent Shelf Registration (as defined below).
The Company and the Guarantors shall use their respective best
efforts to cause each Initial Shelf Registration to be declared effective under
the Securities Act on or prior to the Effectiveness Date and to keep such
Initial Shelf Registration continuously effective under the Securities Act until
the date which is two years from the Effectiveness Date, subject to extension
pursuant to the last paragraph of Section 5 hereof (the "Effectiveness Period"),
or such shorter period ending when (i) all Registrable Notes covered by the
Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration or (ii) a Subsequent Shelf
Registration covering all of the Registrable Notes covered by and not sold under
the Initial Shelf Registration or an earlier Subsequent Shelf Registration has
been declared effective under the Securities Act; provided, however, that the
Effectiveness Period in respect of the Initial Shelf Registration shall be
extended to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the Securities Act and as
otherwise provided herein.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for any
reason at any time during the Effectiveness Period (other than because of the
sale of all of the securities registered thereunder), the Company and the
Guarantors shall use their respective reasonable best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall within 45 days of such cessation of effectiveness amend the Initial
Shelf Registration in a manner to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Notes covered by and not
sold under the Initial Shelf Registration or an earlier Subsequent Shelf
Registration (each, a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company and the Guarantors shall use their respective
best efforts to cause the Subsequent Shelf Registration to be declared effective
under the Securities Act as soon as practicable after such filing and to keep
such Registration Statement continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration or any Subsequent Shelf Registration
was previously continuously effective. As used herein the term "Shelf
Registration" means the Initial Shelf Registration and any Subsequent Shelf
Registration.
(c) Supplements and Amendments. The Company and the Guarantors
shall promptly supplement and amend the Shelf Registration if required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement or by any underwriter
of such Registrable Notes.
4. Additional Interest. (a) The Company, the Guarantors and
the Initial Purchaser agree that the Holders will suffer damages if the Company
and the Guarantors fail to fulfill their obligations under Section 2 or Section
3 hereof and that it would not be feasible to ascertain the extent of such
damages with precision. Accordingly, the Company and the Guarantors agree to
pay, as liquidated damages, additional interest on the Notes ("Additional
Interest") under the circumstances and to the extent set forth below (each of
which shall be given independent effect):
(i) if (A) neither the Exchange Offer Registration Statement
nor the Initial Shelf Registration has been filed with the SEC within
90 days after the Issue Date or (B) notwithstanding that the Company
and the Guarantors have consummated or will consummate an Exchange
Offer, the Company and the Guarantors are required to file a Shelf
Registration and such Shelf Registration is not filed on or prior to
the Filing Date applicable thereto, then, commencing on the day after
any such Filing Date, Additional Interest shall accrue on the principal
amount of the Notes at a rate of [0.50%] per annum for the first 90
days immediately following each such Filing Date, such Additional
Interest rate increasing by an additional [0.50%] per annum at the
beginning of each subsequent 90-day period;
(ii) if (A) neither the Exchange Offer Registration Statement
nor the Initial Shelf Registration is declared effective by the SEC on
or prior to the relevant Effectiveness Date or (B) notwithstanding that
the Company and the Guarantors have consummated or will consummate the
Exchange Offer, the Company and the Guarantors are required to file a
Shelf Registration and such Shelf Registration is not declared
effective by the SEC on or prior to the Effectiveness Date in respect
of such Shelf Registration, then, commencing on the day after such
Effectiveness Date, Additional Interest shall accrue on the principal
amount of the Notes at a rate of [0.50%] per annum for the first 90
days immediately following the day after such Effectiveness Date, such
Additional Interest rate increasing by an additional [0.50%] per annum
at the beginning of each subsequent 90-day period; and
(iii) if (A) the Company and the Guarantors have not exchanged
Exchange Notes for all Notes validly tendered in accordance with the
terms of the Exchange Offer on or prior to the 210th day after the
Issue Date or (B) if applicable, a Shelf Registration has been declared
effective and such Shelf Registration ceases to be effective at any
time during the Effectiveness Period (other than after such time as all
Notes have been disposed of thereunder), then Additional Interest shall
accrue on the principal amount of the Notes at a rate of 0.50% per
annum for the first 90 days commencing on the (x) 211th day after the
Issue Date, in the case of (A) above, or (y) the day such Shelf
Registration ceases to be effective in the case of (B) above, such
Additional Interest rate increasing by an additional 0.50% per annum at
the beginning of each such subsequent 90-day period;
provided, however, that Additional Interest on the Notes may not accrue under
more than one of the foregoing clauses (i), (ii) or (iii) at any one time and at
no time shall the aggregate amount of Additional Interest accruing exceed in the
aggregate 1.5% per annum; provided, further, however, that (1) upon the filing
of the Exchange Offer Registration Statement or a Shelf Registration as required
hereunder (in the case of clause (a)(i) of this Section 4), (2) upon the
effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration as required hereunder (in the case of clause (a)(ii) of this
Section 4), or (3) upon the exchange of Exchange Notes for all Notes tendered
(in the case of clause (a)(iii)(A) of this Section 4), or upon the effectiveness
of a Shelf Registration which had ceased to remain effective (in the case of
(a)(iii)(B) of this Section 4), Additional Interest on the Notes as a result of
such clause (or the relevant subclause thereof), as the case may be, shall cease
to accrue. It is understood and agreed that, notwithstanding any provision to
the contrary, so long as any Registrable Note is then covered by an effective
Shelf Registration Statement, no Additional Interest shall accrue on such
Registrable Security.
(b) The Company and the Guarantors shall notify the Trustee
within two business days after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an "Event Date").
Any amounts of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii)
of this Section 4 will be payable in cash semi-annually on each May 15 and
November 15 (to the holders of record on the May 1 and November 1 immediately
preceding such dates), commencing with the first such date occurring after any
such Additional Interest commences to accrue. The amount of Additional Interest
will be determined by multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
5. Registration Procedures. In connection with the filing of
any Registration Statement pursuant to Sections 2 or 3 hereof, the Company and
the Guarantors shall effect such registrations to permit the sale of the
securities covered thereby in accordance with the intended method or methods of
disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Company and the Guarantors hereunder the
Company and the Guarantors shall:
(a) Prepare and file with the SEC prior to the applicable
Filing Date, a Registration Statement or Registration Statements as prescribed
by Sections 2 or 3 hereof, and use their respective best efforts to cause each
such Registration Statement to become effective and remain effective as provided
herein; provided, however, that, if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company and the Guarantors shall furnish to and afford the Holders of the
Registrable Notes covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each case at least
five business days prior to such filing, or such later date as is reasonable
under the circumstances). Neither the Company nor any Guarantor shall file any
Registration Statement or Prospectus or any amendments or supplements thereto if
the Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement, or any such Participating Broker-Dealer,
as the case may be, their counsel, or the managing underwriters, if any, shall
reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period or
the Applicable Period, as the case may be; cause the related Prospectus to be
supplemented by any Prospectus supplement required by applicable law, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) promulgated under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange Act applicable to each of them with respect
to the disposition of all securities covered by such Registration Statement as
so amended or described in such Prospectus as so supplemented and with respect
to the subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus. The Company and the Guarantors
shall be deemed not to have used their respective best efforts to keep a
Registration Statement effective during the Effectiveness Period or the
Applicable Period, as the case may be, relating thereto if the Company or any
Guarantor, as the case may be, voluntarily takes any action that would result in
selling Holders of the Registrable Notes covered thereby or Participating
Broker-Dealers seeking to sell Exchange Notes not being able to sell such
Registrable Notes or such Exchange Notes during that period unless (i) such
action is required by applicable law or (ii) such action is taken by each of
them in good faith and for valid business reasons (not including avoidance of
any of its obligations hereunder), including the acquisition or divestiture of
assets.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto from whom the Company has
received written notice that it will be a Participating Broker-Dealer in the
Exchange Offer, notify the selling Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, promptly (but in any event within two Business Days), and
confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective under the Securities Act (including in such notice a written statement
that any Holder may, upon request, obtain, at the sole expense of the Company
and the Guarantors, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits), (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that purpose,
(iii) if, at any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Notes or resales of
Exchange Notes by Participating Broker-Dealers, the representations and
warranties of the Company and the Guarantors contained in any agreement
(including any underwriting agreement) contemplated by Section 5(m) hereof cease
to be true and correct in all material respects, (iv) of the receipt by the
Company or any Guarantor of any notification with respect to the suspension of
the qualification or exemption from qualification of a Registration Statement or
any of the Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event, the existence of any condition or any information
becoming known that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the making
of any changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any 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, and
(vi) of the determination by the Company and the Guarantors that a
post-effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use their respective reasonable best efforts
to prevent the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from qualification) of
any of the Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any such
order is issued, to use their respective reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter or underwriters (if any), the Holders
of a majority in aggregate principal amount of the Registrable Notes being sold
in connection with an underwritten offering or any Participating Broker-Dealer,
(i) promptly incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriter or underwriters (if any), such
Holders, any Participating Broker-Dealer or counsel for any of them reasonably
determine is necessary to be included therein, (ii) make all required filings of
such prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment, and
(iii) supplement or make amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, furnish to each selling Holder of
Registrable Notes and to each such Participating Broker-Dealer who so requests
and to counsel and each managing underwriter, if any, at the sole expense of the
Company and the Guarantors, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, deliver to each selling Holder of
Registrable Notes, or each such Participating Broker-Dealer, as the case may be,
their respective counsel, and the underwriters, if any, at the sole expense of
the Company, as many copies of the Prospectus or Prospectuses (including each
form of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Company and
the Guarantors hereby consent to the use of such Prospectus and each amendment
or supplement thereto by each of the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Offer Registration Statement
by any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, to use their respective reasonable best efforts to register
or qualify, and to cooperate with the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes for offer and sale under the securities
or Blue Sky laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer, or the managing underwriter or underwriters
reasonably request; provided, however, that where Exchange Notes held by
Participating Broker-Dealers or Registrable Notes are offered other than through
an underwritten offering, the Company and the Guarantors agree to cause their
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h), keep each
such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes covered by the applicable Registration
Statement; provided, further, that neither the Company nor any Guarantor shall
be required to (A) qualify generally to do business in any jurisdiction where it
is not then so qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject or
(C) subject itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, reasonably cooperate with the selling Holders of Registrable Notes and
the managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes to be
sold, which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or Holders may request.
(j) Use their respective reasonable best efforts to cause the
Registrable Notes covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be reasonably
necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable Notes,
except as may be required solely as a consequence of the nature of such selling
Holder's business, in which case the Company and the Guarantors will cooperate
in all reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable
prepare and (subject to Section 5(a) hereof) file with the SEC, at the sole
expense of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Notes being sold thereunder or to the purchasers of the Exchange
Notes to whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus 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, in light of the circumstances under
which they were made, not misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with The
Depository Trust Company, Euroclear and/or Cedel Bank, as the case may be, and
(ii) provide a CUSIP number and an ISIN number for the Registrable Notes.
(m) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities similar
to the Securities and take all such other actions as are reasonably requested by
the managing underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants with,
the underwriters with respect to the business of the Company, the Guarantors and
their respective subsidiaries (including any acquired business, properties or
entity, if applicable) and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten
offerings of debt securities similar to the Securities, and confirm the same in
writing if and when requested; (ii) obtain the written opinions of counsel to
the Company and the Guarantors and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or underwriters,
addressed to the underwriters covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by the managing underwriter or underwriters; (iii) obtain
"cold comfort" letters and updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters from the
independent certified public accountants of the Company and the Guarantors (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Company or any Guarantor or of any business acquired by the
Company or any Guarantor for which financial statements and financial data are,
or are required to be, included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and such other
matters as reasonably requested by the managing underwriter or underwriters as
permitted by the Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in Section 7
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriter or underwriters or agents)
with respect to all parties to be indemnified pursuant to said Section. The
above shall be done as and to the extent required by such underwriting
agreement.
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, make available for inspection by any selling
Holder of such Registrable Notes being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant or other
agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
instruments of the Company, the Guarantors and their respective subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Company, the Guarantors and their respective
subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement or Prospectus. Records
which the Company determines, in good faith, to be confidential and any Records
which the Company notifies the Inspectors in writing are confidential shall not
be disclosed by the Inspectors unless (i) the disclosure of such Records is
necessary or advisable to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such information is necessary or advisable in connection with any
action, claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon, relating
to, or involving this Agreement or the Purchase Agreement, or any transactions
contemplated hereby or thereby or arising hereunder or thereunder; provided,
however, that prior notice shall be provided as soon as practicable to the
Company of the potential disclosure of any information by such Inspector
pursuant to clauses (ii) or (iii) of this sentence to permit the Company and the
Guarantors to obtain a protective order (or waive the provisions of this
paragraph (n)) and that such Inspector shall take such actions as are reasonably
necessary to protect the confidentiality of such information (if practicable) to
the extent such action is otherwise not inconsistent with, an impairment of or
in derogation of the rights and interests of the Holder or any Inspector, or
(iv) the information in such Records has been made generally available to the
public other than as a result of a breach of this Agreement.
(o) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, reasonably cooperate with the trustee under any such indenture and
the Holders of the Registrable Notes, to effect such changes to such indenture
as may be required for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use their respective reasonable best efforts
to cause such trustee to execute, all documents as may be required to effect
such changes, and all other forms and documents required to be filed with the
SEC to enable such indenture to be so qualified in a timely manner.
(p) Comply in all material respects with all applicable rules
and regulations of the SEC and make generally available to their respective
securityholders earnings statements satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period is a
fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall cover said
12-month periods.
(q) Upon consummation of the Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Company and the Guarantors, in a
form customary for underwritten transactions, addressed to the Trustee for the
benefit of all Holders of Registrable Notes participating in the Exchange Offer
or the Private Exchange, as the case may be, that the Exchange Notes or Private
Exchange Notes, as the case may be, and the related indenture constitute legal,
valid and binding obligations of the Company (and the Guarantors, in the case of
the guarantees thereof) enforceable against the Company (and the Guarantors, in
the case of the guarantees thereof) in accordance with their terms, subject to
customary exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the Company
(or to such other Person as directed by the Company) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the Company
shall mark, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be; in no event shall such Registrable
Notes be marked as paid or otherwise satisfied.
(s) Reasonably cooperate with each seller of Registrable Notes
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD") and listing under the
Luxembourg Stock Exchange.
(t) Use their respective reasonable best efforts to take all
other steps necessary or advisable to effect the registration of the Exchange
Notes and/or Registrable Notes covered by a Registration Statement contemplated
hereby.
The Company and the Guarantors may require each seller of
Registrable Notes as to which any registration is being effected to furnish to
the Company such information regarding such seller and the distribution of such
Registrable Notes as the Company may, from time to time, reasonably request. The
Company may exclude from such registration the Registrable Notes of any seller
if such seller fails to furnish such information within 20 Business Days after
receiving such request. Each seller as to which any registration is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such seller not materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company or any
Guarantor, then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance reasonably satisfactory to such
Holder, to the effect that the holding by such Holder of such securities is not
to be construed as a recommendation by such Holder of the investment quality of
the securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the Company
or such Guarantor, or (ii) in the event that such reference to such Holder by
name or otherwise is not required by the Securities Act or any similar federal
statute then in force, the deletion of the reference to such Holder in any
amendment or supplement to the Registration Statement filed or prepared
subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
actual receipt of any notice from the Company of the happening of any event of
the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof,
such Holder will forthwith discontinue disposition of such Registrable Notes
covered by such Registration Statement or Prospectus or Exchange Notes to be
sold by such Holder or Participating Broker-Dealer, as the case may be, until
such Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof, or until
it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto. In the event that the Company shall give any such
notice, the Applicable Period shall be extended by the number of days during
such periods from and including the date of the giving of such notice to and
including the date when each seller of Registrable Notes covered by such
Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y)
the Advice.
6. Registration Expenses. All fees and expenses incident to
the performance of or compliance with this Agreement by the Company and the
Guarantors shall be borne by the Company and the Guarantors, whether or not any
Exchange Offer or any Shelf Registration is filed or becomes effective or the
Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and/or Euroclear and Cedel, as the case may be, and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in aggregate principal
amount of the Registrable Notes included in any Registration Statement or in
respect of Registrable Notes or Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses of the Company and the Guarantors, (iv) fees and
disbursements of counsel for the Company and the Guarantors and reasonable fees
and disbursements of one special counsel for all of the sellers of Registrable
Notes (exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees
and disbursements of all independent certified public accountants referred to in
Section 5(m)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (vi) Securities Act liability insurance, if the Company and the
Guarantors desire such insurance, (vii) fees and expenses of all other Persons
retained by the Company and the Guarantors, (viii) internal expenses of the
Company and the Guarantors (including, without limitation, all salaries and
expenses of officers and employees of the Company and the Guarantors performing
legal or accounting duties), (ix) the expense of any annual audit, (x) the fees
and expenses incurred by the Company and the Guarantors in connection with the
listing of the securities to be registered on any securities exchange, and the
obtaining of a rating of these securities, in each case, if applicable, and (xi)
the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, indentures and any other
documents necessary in order to comply with this Agreement.
7. Indemnification. The Company and each Guarantor, jointly
and severally, agree to indemnify and hold harmless the Initial Purchaser, its
officers and directors, each person, if any, who controls the Initial Purchaser
and each affiliate of the Initial Purchaser which assists such Initial Purchaser
in the distribution of the Securities, 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 and liabilities (including, without limitation,
the legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Offering Memorandum (as
amended or supplemented if the Issuers shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein 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
Initial Purchaser's Information.
The Initial Purchaser agrees to indemnify and hold harmless
each of the Issuers, its directors, its officers and each person who controls
such Issuer within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Issuers to the Initial Purchaser, but only with reference to such
losses, claims, damages or liabilities which are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any Initial Purchaser'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 Initial Purchaser, each affiliate of any Initial Purchaser
which assists such Initial Purchaser in the distribution of the Securities and
such control persons of the Initial Purchaser shall be designated in writing by
J.P. Morgan Securities Ltd., and any such separate firm for the Issuers, their
respective directors, their respective officers 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 Initial
Purchaser 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 Initial Purchaser 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 Initial
Purchaser 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 Initial Purchaser, in each case as set forth in the
table on the cover of the Offering Memorandum. The relative fault of the Issuers
on the one hand and the Initial Purchaser 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
Initial Purchaser 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 Initial Purchaser 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 referred 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
the Initial Purchaser 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 the Initial Purchaser 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 Initial Purchaser or any person controlling the Initial Purchaser
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. Rules 144 and 144A. The Company covenants that it will use
its reasonable best efforts to file the reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder in a timely manner in accordance with the requirements of the
Securities Act and the Exchange Act and, for so long as any Registrable Notes
remain outstanding, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder or beneficial owner of
Registrable Notes, make available such information necessary to permit sales
pursuant to Rule 144A under the Securities Act. The Company further covenants
that, for so long as any Registrable Notes remain outstanding, it will use its
reasonable best efforts to take such further action as any Holder of Registrable
Notes may reasonably request, all to the extent required from time to time to
enable such holder to sell Registrable Notes without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule
144(k) and Rule 144A under the Securities Act, as such Rules may be amended from
time to time, or (b) any similar rule or regulation hereafter adopted by the
SEC. Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
9. Underwritten Registrations. If any of the Registrable Notes
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Holders of a majority in aggregate
principal amount of such Registrable Notes included in such offering and
reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous. (a) No Inconsistent Agreements. Neither the
Company nor any Guarantor has, as of the date hereof, and neither the Company
nor any Guarantor shall, after the date of this Agreement, enter into any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's or any Guarantor's other
issued and outstanding securities under any such agreements. Neither the Company
nor any Guarantor will enter into any agreement with respect to any of its
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. Neither the
Company nor any Guarantor shall, directly or indirectly, take any action with
respect to the Registrable Notes as a class that would adversely affect the
ability of the Holders of Registrable Notes to include such Registrable Notes in
a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of (I) the Company and the Guarantors and (II)(A) the
Holders of not less than a majority in aggregate principal amount of the then
outstanding Registrable Notes and (B) in circumstances that would adversely
affect the Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority in aggregate principal amount of the Exchange
Notes held by all Participating Broker-Dealers; provided, however, that Section
7 and this Section 10(c) may not be amended, modified or supplemented without
the prior written consent of each Holder and each Participating Broker-Dealer
(including any person who was a Holder or Participating Broker-Dealer of
Registrable Notes or Exchange Notes, as the case may be, disposed of pursuant to
any Registration Statement) affected by any such amendment, modification or
supplement. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Notes whose securities are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect,
impair, limit or compromise the rights of other Holders of Registrable Notes may
be given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold by such Holders pursuant to such Registration
Statement.
(d) Notices. All notices and other communications (including
without limitation any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(i) if to a Holder of Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the registrar
under the Indenture.
(ii) if to the Company or any Guarantor at the address as
follows:
Canandaigua Brands, Inc.
300 Willowbrook Office Park
Fairport, New York 14450
Attention: David Sorce
VP/Corporate Counsel
Telephone: (716) 218-2118
Facsimile: (716) 218-2165
with a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606-5096
Telephone: (312) 984-7587
Facsimile: (312) 984-7700
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; provided, however,
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign holds Registrable Notes.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties hereto that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Company, the
Guarantors or any of their affiliates (as such term is defined in Rule 405 under
the Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Notes
and Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Holders
on the one hand and the Company and the Guarantors on the other, or between or
among any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect to the subject
matter hereof and thereof are merged herein and replaced hereby.
(m) Additional Amounts of Securities. The Securities are
limited in aggregate principal amount to (pound)150,000,000. Additional amounts
of Securities may be issued in one or more series from time to time under the
Indenture (collectively "Additional Notes") prior to the filing of any
Registration Statement. The Company and the Guarantors shall provide the
registration rights set forth under this Agreement to the Initial Purchaser and
any subsequent holder or holders of such Additional Notes and notwithstanding
anything contained herein may but are not obligated to include such Additional
Notes in any Registration Statement filed hereunder.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CANANDAIGUA BRANDS, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Senior Vice President and Chief
Financial Officer
GUARANTORS
BATAVIA WINE CELLARS, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Treasurer
BARTON INCORPORATED
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
BARTON BRANDS, LTD.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
BARTON BEERS, LTD.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
BARTON BRANDS OF CALIFORNIA, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
BARTON BRANDS OF GEORGIA, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
BARTON DISTILLERS IMPORT CORP.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
BARTON FINANCIAL CORPORATION
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
STEVENS POINT BEVERAGE CO.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
CANANDAIGUA LIMITED
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Finance Director
MONARCH IMPORT COMPANY
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
CANANDAIGUA WINE COMPANY, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Treasurer
THE VIKING DISTILLERY, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
CANANDAIGUA EUROPE LIMITED
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Treasurer
ROBERTS TRADING CORP.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: President and Treasurer
POLYPHENOLICS, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
FRANCISCAN VINEYARDS, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
ALLBERRY, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
CLOUD PEAK CORPORATION
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
M.J. LEWIS CORP.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
MT. VEEDER CORPORATION
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
SCV-EPI VINEYARDS, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President and Treasurer
SIMI WINERY, INC.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: President and Treasurer
CANANDAIGUA B.V.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Authorized Representative
BARTON CANADA, LTD.
By: /s/ Thomas S. Summer
------------------------------------
Name: Thomas S. Summer
Title: Vice President
INITIAL PURCHASER
J.P. MORGAN SECURITIES LTD.
By: /s/ M.R. Poisson
------------------------------------
Name: M.R. Poisson
Title: Managing Director
Exhibit 5
Canandaigua Brands, Inc.
300 WillowBrook Office Park
Fairport, New York 14450
Re: Registration Statement on Form S-4 of Canandaigua Brands, Inc.
Ladies and Gentlemen:
This opinion is furnished to you in connection with the
above-referenced registration statement on Form S-4 (the "Registration
Statement") filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), for the registration of
(pound)75,000,000 aggregate principal amount of 8 1/2% Series B Senior Notes due
2009 (the "New Notes") of Canandaigua Brands, Inc., a Delaware corporation (the
"Company"), to be unconditionally guaranteed (the "Guarantees") by certain of
the Company's subsidiaries that are signatories to the Indenture (the
"Guarantors"). The New Notes will be offered in exchange (the "Exchange") for
the Company's outstanding 8 1/2% Senior Notes due 2009 of the Company (the "Old
Notes").
The New Notes will be issued in exchange for Old Notes pursuant to an
Indenture (the "Indenture") dated as of November 17, 1999 among the Company,
certain guarantor subsidiaries of the Company and Harris Trust and Savings Bank,
as Trustee (the "Trustee"), and the related Registration Rights Agreement dated
as of November 17, 1999 among the Company, certain guarantors named therein, and
J.P. Morgan Securities Ltd. (the "Registration Rights Agreement").
In arriving at the opinion expressed below, we have examined the
Registration Statement, the Indenture, the Registration Rights Agreement, the
New Notes, and such other documents as we have deemed necessary to enable us to
express the opinion hereinafter set forth. In addition, we have examined and
relied, to the extent we deemed proper, on certificates of officers of the
Company and the Guarantors as to factual matters, and on originals or copies
certified or otherwise identified to our satisfaction, of all such corporate
records of the Company and the Guarantors and such other instruments and
certificates of public officials and other persons as we have deemed
appropriate. In our examination, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the original documents
of all documents submitted to us as copies, the genuineness of all signatures on
documents reviewed by us and the legal capacity of natural persons. We have
further assumed that the New Notes and the Guarantees have been duly executed
and delivered, all in accordance with the authorizing resolutions of the Board
of Directors of the Company and the Guarantors.
We express no opinion as to the applicability of, compliance with or
effect of, the law of any jurisdiction other than the federal laws of the United
States, the General Corporation Law of the State of Delaware, and the laws of
the State of New York.
Based upon and subject to the foregoing, we are of the opinion that the
New Notes, when duly executed and authenticated in accordance with the terms of
the Indenture, and delivered in exchange for Old Notes in accordance with the
terms of the Indenture, will be valid and legally binding obligations of the
Company and will be entitled to the benefits of the Indenture, except that the
enforceability thereof may be limited by or subject to bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or other similar
laws now or hereafter existing which affect the rights and remedies of creditors
generally and equitable principles of general applicability. With respect to the
enforceability of all obligations under the New Notes payable in pounds
sterling, we note that a United States federal court would award a judgment only
in United States dollars and that a judgment of a court in the State of New York
rendered in pounds sterling would be converted into United States dollars at the
rate of exchange prevailing on the date of entry of such judgment.
In rendering the opinions set forth above, we have assumed that the
choice of the pounds sterling as the currency in which the New Notes are
denominated does not contravene any exchange controls or other laws of the
United Kingdom, and we have also assumed that the execution, authentication and
delivery by the Company of the Indenture and the New Notes do not and will not
violate, conflict with or constitute a default under any agreement or instrument
to which the Company or its properties is subject, except for those agreements
and instruments which have been identified to us by the Company as being
material to it and which are listed in Part 2 of the Company's Annual Report on
Form 10-K for the year ended 1998.
We hereby consent to the references to our firm under the caption
"Legal Matters" in the Registration Statement and to the use of this opinion as
an exhibit to the Registration Statement. In giving this consent, we do not
hereby admit that we come within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
EXHIBIT 12
----------
CANANDAIGUA BRANDS, INC. AND SUBSIDIARIES
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(in thousands of dollars)
<TABLE>
<CAPTION>
For the Six For the Six For the Years
Months Ended For the Years Ended Months Ended Ended
August 31, February 28, February 29, August 31,
------------------- ------------------------------ ------------ -------------------
1999 1998 1999 1998 1997 1996 1995 1994
-------- -------- -------- -------- -------- ------------ -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Earnings:(a)
Income before provision for income taxes $ 53,244 $ 50,559 $104,430 $ 79,881 $ 79,160 $ 13,630 $ 62,626 $ 7,824
Add fixed charges 53,997 18,232 46,523 35,851 37,074 18,684 27,337 19,919
-------- -------- -------- -------- -------- -------- -------- --------
Earnings $107,241 $ 68,791 $150,953 $115,732 $116,234 $ 32,314 $ 89,963 $ 27,743
======== ======== ======== ======== ======== ======== ======== ========
Fixed Charges:
Interest on debt and capitalized leases $ 52,309 $ 16,665 $ 43,537 $ 32,917 $ 34,473 $ 17,447 $ 25,121 $ 18,367
Amortization of direct financing costs 829 1,095 1,867 2,082 2,112 1,046 1,881 1,287
Amortization of discount on debt 208 189 388 352 112 -- -- --
Interest element of rentals 651 283 731 500 377 191 335 265
-------- -------- -------- -------- -------- -------- -------- --------
Total fixed charges $ 53,997 $ 18,232 $ 46,523 $ 35,851 $ 37,074 $ 18,684 $ 27,337 $ 19,919
======== ======== ======== ======== ======== ======== ======== ========
Ratio of Earnings to Fixed Charges 2.0 3.8 3.2 3.2 3.1 1.7 3.3 1.4
======== ======== ======== ======== ======== ======== ======== ========
(a) For the purpose of calculating the ratio of earnings to fixed charges,
"earnings" represent income before provision for income taxes plus fixed
charges. "Fixed charges" consist of interest expensed and capitalized,
amortization of debt issuance costs, amortization of discount on debt, and
the portion of rental expense which management believes is representative
of the interest component of lease expense.
</TABLE>
EXHIBIT 23.1
------------
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated April 22, 1999
included in Canandaigua Brands, Inc.'s Form 10-K for the year ended February 28,
1999 and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Rochester, New York,
January 10, 2000
EXHIBIT 23.2
-------------
[KPMG Logo]
Stamford Square
3001 Summer Street
Stamford, CT 06905
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Canandaigua Brands, Inc.:
We consent to the incorporation by reference in this registration statement on
Form S-4 of Canandaigua Brands, Inc. of our report dated June 24, 1999, with
respect to the statement of assets and liabilities related to the product lines
sold to Canandaigua Brands, Inc. as of April 9, 1999 and the related statement
of identified income and expenses for the year ended December 31, 1998, which
report appears in the Form 8-K/A Amendment No. 2 of Canandaigua Brands, Inc.
dated April 9, 1999 and to the reference to our firm under the heading "Experts"
in this registration statement.
/s/ KPMG LLP
January 10, 2000
[Graphic] KPMG LLP. KPMG LLP, a U.S. limited liability partnership, is
a member of KPMG International, a Swiss association.
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as Trustee
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) X
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Daniel G. Donovan, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
(312) 461-2908 phone (312) 461-3525 facsimile
(Name, address and telephone number for agent for service)
CANANDAIGUA BRANDS, INC.
(Obligor)
Delaware 16-0716709
(State of Incorporation) (I.R.S. Employer Identification No.)
300 Willow Brook Office Pak
Fairport, NY 14450
(Address of principal executive offices)
8 1/2% Senior Notes, Due 2009
(Title of indenture securities)
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164
West Jackson Boulevard, Chicago, Illinois; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise
corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the
Trustee, describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. through 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee as now in
effect which includes the authority of the trustee to commence
business and to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between
Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc.
which constitutes the articles of association of the Trustee as
now in effect and includes the authority of the Trustee to
commence business and to exercise corporate trust powers was filed
in connection with the Registration Statement of Louisville Gas
and Electric Company, File No. 2-44295, and is incorporated herein
by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in
connection with the Registration Statement of Commercial Federal
Corporation, File No. 333-20711, and is incorporated herein by
reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or
examining authority.
(included as Exhibit B on page 3 of this statement)
1
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 8th day of December, 1999.
HARRIS TRUST AND SAVINGS BANK
By: /S/ DGDONOVAM
------------------------
D. G. Donovan
Assistant Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /S/ DGDONOVAM
------------------------
D. G. Donovan
Assistant Vice President
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of June 30, 1999, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
[HARRIS BANK LOGO]
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on June 30, 1999, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve System.
Published in accordance with a call made by the Commissioner of Banks and Trust
Companies of the State of Illinois and by the Federal Reserve Bank of this
District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin ........... $ 1,223,957
Interest bearing ............................................... $ 159,159
balances......................................................................
Securities:...................................................................
a. Held-to-maturity securities .............................................. $ 0
b. Available-for-sale securities ............................................ $ 5,664,104
Federal funds sold and securities purchased under agreements to resell ....... $ 193,550
Loans and lease financing receivables:
Loans and leases, net of unearned income ....................... $ 9,665,676
LESS: Allowance for loan and lease losses...................... $ 110,414
-----------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b)............................................ $ 9,555,262
Assets held in trading accounts............................................... $ 126,028
Premises and fixed assets (including capitalized leases) ..................... $ 268,415
Other real estate owned....................................................... $ 644
Investments in unconsolidated subsidiaries and associated companies .......... $ 80
Customer's liability to this bank on acceptances outstanding ................. $ 45,535
Intangible assets............................................................. $ 249,724
Other assets.................................................................. $ 1,268,631
-----------
TOTAL ASSETS ................................................................. $18,755,089
===========
3
<PAGE>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices ..................................................... $ 9,627,629
Non-interest bearing ........................................... $ 3,074,637
Interest bearing ............................................... $ 6,552,992
In foreign offices, Edge and Agreement subsidiaries, and IBF's .......... $ 1,940,306
Non-interest bearing ........................................... $ 25,877
Interest bearing ............................................... $ 1,914,429
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in
IBF's:
Federal funds purchased & securities sold under agreements to repurchase .... $ 3,592,929
Trading Liabilities 41,548
Other borrowed money: .......................................................
a. With remaining maturity of one year or less $ 1,634,473
b. With remaining maturity of more than one year $ 0
Bank's liability on acceptances executed and outstanding $ 45,535
Subordinated notes and debentures ........................................... $ 225,000
Other liabilities............................................................ $ 396,941
-----=------
TOTAL LIABILITIES $ 17,504,361
============
EQUITY CAPITAL
Common stock ................................................................ $ 100,000
Surplus ..................................................................... $ 609,314
a. Undivided profits and capital reserves .................................. $ 636,420
b. Net unrealized holding gains (losses) on available-for-sale securities ($ 95,006)
------------
TOTAL EQUITY CAPITAL ........................................................ $ 1,250,728
============
Total liabilities, limited-life preferred stock, and equity capital.......... $ 18,755,089
============
</TABLE>
I, Christy Wipper, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
CHRISTY WIPPER
7/28/99
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
ALAN G. McNALLY,
EDWARD W. LYMAN,
LEO M. HENIKOFF
Directors.
4
Exhibit 99.1
LETTER OF TRANSMITTAL
CANANDAIGUA BRANDS, INC.
OFFER TO EXCHANGE
8 1/2% SENIOR NOTES DUE 2009
FOR
8 1/2% SERIES B SENIOR NOTES DUE 2009
PURSUANT TO THE PROSPECTUS DATED _______, 2000
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON,
___________, ___________, 2000, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS
MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
- --------------------------------------------------------------------------------
By execution of this Letter of Transmittal the undersigned acknowledges
receipt of the prospectus dated _________, 2000 (the "Prospectus") of
Canandaigua Brands, Inc., a Delaware corporation (the "Company"), which,
together with this letter of transmittal and the instructions hereto (the
"Letter of Transmittal"), constitutes the Company's offer (the "Exchange Offer")
to exchange (pound)75,000,000 of 8 1/2% Series B Senior Notes due 2009 (the "New
Notes") that have been registered under the U.S. Securities Act of 1933 for
(pound)75,000,000 of its outstanding 8 1/2% Senior Notes due 2009 (the "Old
Notes") pursuant to a registration statement of which the Prospectus is a part,
upon the terms and subject to the conditions set forth in the Prospectus.
Tenders of Old Notes will be accepted only in authorized denominations of
(pound)1,000. Capitalized terms used but not defined herein have the meanings
given to them in the Prospectus.
Because all of the Old Notes are held in book-entry accounts maintained
by the Exchange Agent at DTC, Euroclear or Cedelbank, this Letter of Transmittal
need not be manually executed; PROVIDED, HOWEVER, that tenders of Old Notes must
be effected in accordance with the procedures mandated by DTC's Automated Tender
Offer Program ("ATOP") or by Euroclear or Cedelbank, as the case may be. To
tender Old Notes in this manner, the electronic instructions sent to DTC,
Euroclear or Cedelbank and transmitted to the Exchange Agent must contain the
character by which the participant acknowledges its receipt of and agrees to be
bound by and make all of the representations in this Letter of Transmittal. In
all other cases, a Letter of Transmittal must be manually executed and delivered
to the Exchange Agent in the manner set forth on the final page of this Letter
of Transmittal.
Any questions regarding the Exchange Offer should be addressed to, and
materials relating to the Exchange Offer may be obtained from, Citibank Global
Agency and Trust Services (telephone (44 171) 508-3839).
Delivery of this Letter of Transmittal in a manner or to an address, or
transmission via telegram, telex or facsimile, other than as set forth above
will not constitute a valid delivery.
<PAGE>
Ladies and Gentlemen:
Subject to the terms of the Exchange Offer, the undersigned hereby
tenders to the Company the principal amount of Old Notes indicated below.
Subject to, and effective upon, the acceptance for exchange of the principal
amount of Old Notes tendered in accordance with this Letter of Transmittal, the
undersigned sells, assigns and transfers to, or upon the order of, the Company
all right, title and interest in and to the Old Notes tendered hereby. The
undersigned hereby irrevocably constitutes and appoints the Exchange Agent its
agent and attorney-in-fact with respect to the Old Notes with full power of
substitution to (i) deliver certificates for such Old Notes to the Company, or
transfer ownership of such Old Notes on the account books maintained by DTC,
Euroclear or Cedelbank, as the case may be, together, in any such case, with all
accompanying evidences of transfer and authenticity to, or upon the order of,
the Company and (ii) present such Old Notes for transfer on the books of the
Company and receive all benefits and otherwise exercise all rights of beneficial
ownership of such Old Notes, all in accordance with the terms of the Exchange
Offer. The power of attorney granted in this paragraph shall be deemed
irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that he or she has full
power and authority to tender, sell, assign and transfer the Old Notes tendered
hereby and that the Company will acquire good and unencumbered title thereto,
free and clear of all liens, restrictions, charges and encumbrances and not
subject to any adverse claim when the same are acquired by the Company. The
undersigned also acknowledges that this Exchange Offer is being made in reliance
on an interpretation by the staff of the U.S. Securities and Exchange
Commission, that the New Notes issued in exchange for the Old Notes pursuant to
the Exchange Offer may be offered for resale, resold and otherwise transferred
by holders thereof (other than any such holder that is an "affiliate" of the
Company within the meaning of Rule 405 under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such New Notes are acquired in the ordinary course
of such holders' business and such holders have no arrangement with any person
to participate in the distribution of such New Notes. If the undersigned is not
a broker-dealer, the undersigned represents that it is not engaged in, and does
not intend to engage in, a distribution of New Notes. If the undersigned is a
broker-dealer that will receive New Notes for its own account in exchange for
Old Notes, the undersigned represents that such Old Notes were acquired as a
result of market-making activities and acknowledges that it will deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such New Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
The undersigned represents that (i) the New Notes acquired pursuant to
the Exchange Offer are being obtained in the ordinary course of business of the
person receiving such New Notes, whether or not such person is the undersigned,
(ii) neither the undersigned holder of Old Notes nor any other person has an
arrangement or understanding with any person to participate in the distribution
of such New Notes, (iii) if the undersigned is not a broker-dealer, or is a
broker-dealer but will not receive New Notes for its own account in exchange for
Old Notes, neither the undersigned nor any such other person is engaged in or
intends to participate in the distribution of such New Notes and (iv) neither
the undersigned nor any such other person is an "affiliate" of the Company
within the meaning of Rule 405 of the Securities Act or, if the undersigned is
an affiliate, that the undersigned will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agent or the Company to be necessary or
desirable to complete the assignment and transfer of the Old Notes tendered
hereby.
For purposes of the Exchange Offer, the Company shall be deemed to have
accepted validly tendered Old Notes when, as and if the Company has given
written notice thereof to the Exchange Agent and complied with the applicable
provisions of the registration rights agreement. If any tendered Old Notes are
not accepted for exchange pursuant to the Exchange Offer for any reason or if
Old Notes are submitted for a greater principal amount than the holder desires
to exchange, such unaccepted or non-exchanged Old Notes will be credited by
book-entry transfer to the account at DTC, Euroclear or Cedelbank from which
they were tendered as promptly as practicable after the expiration or
termination of the Exchange Offer.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned and every obligation under this Letter of Transmittal shall be
binding upon the undersigned's heirs, personal representatives, successors, and
assigns.
The undersigned understands that tenders of Old Notes pursuant to the
procedures described under the caption "The Exchange Offer-Procedures for
Tendering Old Notes" in the Prospectus and in the instructions hereto will
constitute a binding agreement between the undersigned and the Company upon the
terms and subject to the conditions of the Exchange Offer.
<PAGE>
THE BRACKETED INFORMATION IS REQUESTED BUT IS NOT REQUIRED. All other
questions must be answered unless otherwise indicated. Only one offer may be
submitted by or on behalf of each beneficial holder owner of Old Notes.
[Name of Beneficial Owner:
--------------------------
Contact Person
--------------------------
Address
--------------------------
Telephone (with international dialing code)
--------------------------
Facsimile (with international dialing code)
--------------------------]
PRINCIPAL AMOUNT TENDERED
<TABLE>
<CAPTION>
Bond Description Series CUSIP ISIN Common Code Principal Amount
<S> <C> <C> <C> <C> <C>
8 1/2% Senior Notes due 2009 144A 137219AF8 US137219AF83 010445744 ___________
8 1/2% Senior Notes due 2009 REG S [none] XS0104457444 10454744 ___________
</TABLE>
1. Company Name of Direct Participant in Euroclear,
Cedelbank or DTC signing:
--------------------------
Contact Person
--------------------------
Address
--------------------------
Telephone (with international dialing code)
--------------------------
Facsimile (with international dialing code)
--------------------------
2. Name of Clearing System (Euroclear, Cedelbank or
DTC) where Old Notes are held:
Account Number at Clearing System
referred to above where Old
Notes are held:
--------------------------
/_/ CHECK HERE AND FILL IN THE NAME AND ADDRESS FOR DELIVERY IF
YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
----------------------------------------------------
Address:
----------------------------------------------------
----------------------------------------------------
<PAGE>
PLEASE SIGN HERE
This Letter of Transmittal must be signed by the holder(s) of the Old
Notes exactly as their name(s) appears(s) on a security position listing as the
owner of Old Notes. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must set forth his or her full title below
under "Capacity" and submit evidence satisfactory to the Company of such
person's authority to so act. See Instruction 3 herein.
x Date:
-------------------------------------- -------------------------------
x Date:
-------------------------------------- -------------------------------
Signature(s) of Holder(s) or
Authorized Signatory
Name(s): Address:
------------------------------- ----------------------------
- --------------------------------------- ------------------------------------
(Please print) (including zip code or postal code)
Capacity(ies): Telephone (with international
------------------------- dialing code):
------------------------------------
Taxpayer Identification No(s):
---------
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND OLD NOTES. The method of
delivery of this Letter of Transmittal, the tendered Old Notes, and all other
required documents to the Exchange Agent is at the election and risk of the
holders and, except as otherwise provided below, the delivery will be deemed
made only when actually received by the Exchange Agent or DTC, Euroclear, or
Cedelbank in the case of electronically delivered Old Notes. Instead of delivery
by mail, it is recommended that an overnight or hand delivery service be used.
In all cases, sufficient time should be allowed to assure timely delivery. No
Letter of Transmittal or Old Notes should be sent to the Company.
2. PARTIAL TENDERS. If less than all of the Old Notes evidenced by a
submitted certificate are to be tendered, the tendering holder(s) should fill in
the aggregate principal amount of Old Notes to be tendered in the box above
entitled "Principal Amount Tendered." ALL OF THE OLD NOTES HELD BY A TENDERING
HOLDER WILL BE DEEMED TO HAVE BEEN TENDERED UNLESS OTHERWISE INDICATED.
3. SIGNATURES IN A FIDUCIARY OR REPRESENTATIVE CAPACITY. If this Letter
of Transmittal (or copy hereof) is signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such persons should so
indicate when signing, and unless waived by the Company, evidence satisfactory
to the Company of their authority to so act must be submitted with this Letter
of Transmittal.
4. TRANSFER TAXES. The Company will pay all transfer taxes, if any,
applicable to the exchange of Old Notes pursuant to the Exchange Offer.
5. WAIVER OF CONDITIONS. The Company reserves the absolute right to
amend, waive, or modify specified conditions in the Exchange Offer in the case
of any Old Notes tendered.
6. IRREGULARITIES. All questions as to the validity, form, eligibility
(including time of receipt), and acceptance of Letters of Transmittal or Old
Notes will be resolved by the Company, whose determination will be final and
binding. The Company reserves the absolute right to reject any or all Letters of
Transmittal or tenders that are not in proper form or the acceptance of which
would, in the opinion of the Company's counsel, be unlawful. The Company also
reserves the absolute right to waive any irregularities or conditions of tender
as to the particular Old Notes covered by any Letter of Transmittal or tendered
pursuant to such Letter of Transmittal. None of the Company, the Exchange Agent
or any other person will be under any duty to give notification of any defects
or irregularities in tenders or incur any liability for failure to give any such
notification. The Company's interpretation of the terms and conditions of the
Exchange Offer shall be final and binding.
<PAGE>
The Exchange Agent for the Exchange Offer is:
CITIBANK, N.A.
By Facsimile: By Overnight Courier, by Hand or by Mail:
Citibank N.A. Citibank N.A.
Attention: Global Agency and Attention: Global Agency and
Trust Services-Operations Trust Services-Operations
Reference: Canandaigua Exchange Offer Reference: Canandaigua Exchange Offer
Fax No. (44 171) 508-3876 P.O. Box 18055
(For Eligible Institutions Only) 5 Carmelite Street
London EC4Y 0PA
Exhibit 99.2
CANANDAIGUA BRANDS, INC.
Offer to Exchange
8 1/2% Senior Notes due 2009
for
8 1/2% Series B Senior Notes due 2009
Pursuant to the Prospectus dated __________, 2000
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON,
___________, ___________, 2000, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS
MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
- --------------------------------------------------------------------------------
__________, 2000
To Registered Holders:
We are enclosing herewith the material listed below relating to the
offer (the "Exchange Offer") by Canandaigua Brands, Inc., a Delaware corporation
(the "Company"), to exchange (pound)75,000,000 of 8 1/2% Series B Senior Notes
due 2009 (the "New Notes") that have been registered under the U.S. Securities
Act of 1933 for (pound)75,000,000 of its outstanding 8 1/2% Senior Notes due
2009 (the "Old Notes") upon the terms and subject to the conditions set forth in
the Prospectus dated ___________,2000 and the related Letter of Transmittal.
Enclosed herewith are copies of the following documents:
1. Prospectus;
2. Letter of Transmittal;
3. Instruction to Registered Holder from Beneficial Owner; and
4. Letter which may be sent to your clients for whose account you hold
Old Notes registered in your name or the name of your nominee, to accompany the
instruction form referred to above, for obtaining such clients' instructions
with regard to the Exchange Offer.
We urge you to contact you clients promptly. Please note that the
Exchange Offer will expire at 5:00 p.m. New York City time (10:00 p.m. London
time) on ________________, 2000 unless extended by the Company in its sole
discretion. Please also note that guaranteed delivery of Old Notes is not
available.
The Exchange Offer is not conditioned upon any minimum number of Old
Notes being tendered.
Pursuant to the Letter of Transmittal, each holder of Old Notes will
represent to the Company that (i) any New Notes acquired pursuant to the
Exchange Offer will be obtained in the ordinary course of business of the person
receiving such New Notes, whether or not such person is such holder, (ii)
neither the holder of Old Notes nor any other person has an arrangement or
understanding with any person to participate in the distribution of such New
Notes, (iii) if the holder is not a broker-dealer, or is a broker-dealer but
will not receive New Notes for its own account in exchange for Old Notes,
neither the holder nor any such other person is engaged in or intends to
participate in the distribution of such New Notes and (iv) neither the holder
nor any such other person is an "affiliate" of the Company within the meaning of
Rule 405 of the Securities Act or, if such holder is an affiliate, that such
holder will comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable. By so acknowledging that it will
deliver and by delivering a prospectus meeting the requirements of the
Securities Act in connection with any resale of such New Notes, the undersigned
is not deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
The enclosed Instruction to Registered Holder from Beneficial Owner
contains an authorization by the beneficial owner of the Old Notes for you to
make the foregoing representations.
The Company will not pay any fee or commission to any broker or dealer
or to any other persons (other than the Exchange Agent for the Exchange Offer)
in connection with the solicitation of tenders of Old Notes pursuant to the
Exchange Offer. The Company will pay all transfer taxes, if any, applicable to
the exchange of Old Notes pursuant to the Exchange Offer, on the transfer of Old
Notes to it.
Any questions regarding the Exchange Offer should be addressed to, and
additional copies of the enclosed materials may be obtained from, Citibank
Global Agency and Trust Services (telephone (44 171) 508-3839).
Very truly yours,
Canandaigua Brands, Inc.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE
YOU THE AGENT OF THE COMPANY, THE EXCHANGE AGENT OR ANY OTHER PERSON, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON
BEHALF OF THE COMPANY IN CONNECTION WITH THE EXCHANGE OFFER OTHER THAN THE
DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED HEREIN.
Exhibit 99.3
CANANDAIGUA BRANDS, INC.
Offer to Exchange
8 1/2% Senior Notes due 2009
for
8 1/2% Series B Senior Notes due 2009
Pursuant to the Prospectus dated __________, 2000
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON,
___________, ___________, 2000, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS
MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
- --------------------------------------------------------------------------------
__________, 2000
To Our Clients:
Enclosed for your consideration is a prospectus dated ________, 2000
(the "Prospectus") and the related letter of transmittal (the "Letter of
Transmittal") relating to the offer (the "Exchange Offer") of Canandaigua
Brands, Inc., a Delaware corporation (the "Company"), to exchange
(pound)75,000,000 of 8 1/2% Series B Senior Notes due 2009 (the "New Notes")
that have been registered under the U.S. Securities Act of 1933 for
(pound)75,000,000 of its outstanding 8 1/2% Senior Notes due 2009 (the "Old
Notes") pursuant to a registration statement of which the Prospectus is a part,
upon the terms and subject to the conditions described in the Prospectus and the
Letter of Transmittal. The Exchange Offer is being made in order to satisfy
certain obligations of the Company contained in the registration rights
agreement, dated November 17, 1999, between the Company and J.P. Morgan
Securities Ltd. in respect of the Old Notes.
This material is being forwarded to you as the beneficial owner of the
Old Notes carried by us in your account but not registered in your name. A
tender of such Old Notes may only be made by us as the holder of record and
pursuant to your instructions.
Accordingly, we request instructions as to whether you wish us to
tender on your behalf the Old Notes held by us for your account, pursuant to the
terms and conditions set forth in the enclosed Prospectus and Letter of
Transmittal.
Your instructions should be forwarded to us as promptly as possible in
order to permit us to tender the Old Notes on your behalf in accordance with the
provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 p.m.,
New York City time (10:00 p.m. London time), on _________, 2000, unless extended
by the Company. Any Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time before the Expiration Date.
If you wish to have us tender your Old Notes, please so instruct us by
completing, executing and returning to us the enclosed instruction form. THE
LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR INFORMATION ONLY AND MAY NOT BE
USED DIRECTLY BY YOU TO TENDER OLD NOTES.
<PAGE>
INSTRUCTION TO REGISTERED HOLDER FROM BENEFICIAL OWNER
CANANDAIGUA BRANDS, INC.
Offer to Exchange
8 1/2% Senior Notes due 2009
for
8 1/2% Series B Senior Notes due 2009
Pursuant to the Prospectus dated ____________, 2000
To Registered Holder:
The undersigned hereby acknowledge(s) receipt of the prospectus dated
____________, 2000 (the "Prospectus") of Canandaigua Brands, Inc., a Delaware
corporation (the "Company"), and accompanying letter of transmittal (the "Letter
of Transmittal") that together constitute the Company's offer (the "Exchange
Offer") to exchange (pound)75,000,000 of 8 1/2% Series B Senior Notes due 2009
(the "New Notes") that have been registered under the U.S. Securities Act of
1933 for (pound)75,000,000 of its outstanding 8 1/2% Senior Notes due 2009 (the
"Old Notes"). Capitalized terms used but not defined have the meanings ascribed
to them in the Prospectus.
This will instruct you, the registered holder, as to the action to be
taken by you relating to the Exchange Offer with respect to the Old Notes held
by you for the account of the undersigned.
The aggregate face amount of the Old Notes held by you for the account
of the undersigned is (fill in amount):
(pound) of 8 1/2% Senior Notes due 2009.
-----------------------------------
With respect to the Exchange Offer, the undersigned hereby instructs
you (check the appropriate box):
/_/ To TENDER the Old Notes held by you for the account of the
undersigned (insert principal amount of Old Notes to be tendered
(if any)):
(pound) of 8 1/2% Senior Notes due 2009.
-----------------------------------
/_/ NOT TO TENDER any Old Notes held by you for the account of the
undersigned.
If the undersigned instructs you to tender Old Notes held by you for
the account of the undersigned, it is understood that you are authorized to
make, on behalf of the undersigned (and the undersigned, by its signature below,
hereby makes to you), the representations and warranties contained in the Letter
of Transmittal that are to be made with respect to the undersigned as a
beneficial owner, including but not limited to the representations, that (i) any
New Notes acquired pursuant to the Exchange Offer will be obtained in the
ordinary course of business of the person receiving such New Notes, whether or
not such person is the registered holder, (ii) neither the holder of Old Notes
nor any other person has an arrangement or understanding with any person to
participate in the distribution of such New Notes, (iii) if the holder is not a
broker-dealer, or is a broker-dealer but will not receive New Notes for its own
account in exchange for Old Notes, neither the holder nor any such other person
is engaged in or intends to participate in the distribution of such New Notes
and (iv) neither the holder nor any such other person is an "affiliate" of the
Company within the meaning of Rule 405 of the Securities Act or, if such holder
is an affiliate, that such holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
By so acknowledging that it will delivery and by delivering a prospectus meeting
the requirements of the Securities Act in connection with any resale of such New
Notes, the undersigned is not deemed to admit that it is an "underwriter" within
the meaning of the Securities Act.
SIGN HERE
Name of beneficial owner(s) (please print):
-------------------------------------
Signature(s):
-------------------------------------------------------------------
Address:
------------------------------------------------------------------------
Telephone (with international dialing code):
------------------------------------
Taxpayer Identification or Social Security/Employer Identification Number,
if applicable:
------------------------------------------------------------------
Date:
---------------------------------------------------------------------------
