EXHIBIT 4.2
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EXECUTION VERSION
SUPPLEMENTAL INDENTURE, dated as of May 9, 2007, among North Atlantic
Trading Company, Inc., a Delaware corporation (the "COMPANY"), each of the
entities identified on the signature page hereto (the "GUARANTORS") and Wells
Fargo Bank, National Association (as successor-by-consolidation to Wells Fargo
Bank Minnesota, National Association), as Trustee ("TRUSTEE").
WHEREAS the Company, the Guarantors and the Trustee entered into an
Indenture, dated as of February 17, 2004 (the "INDENTURE"), pursuant to which
the Company issued $200,000,000 in principal amount of its 9 1/4% Senior Notes
due 2012 (the "SECURITIES"), all of which are outstanding on the date hereof;
WHEREAS Section 9.02 of the Indenture provides that the Company, the
Guarantors and the Trustee may amend the Indenture with the written consent of
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding;
WHEREAS the Company desires to amend certain provisions of the Indenture,
as set forth in Article I hereof;
WHEREAS the Holders of at least a majority in aggregate principal amount
of the Securities outstanding have consented to the amendments effected by this
Supplemental Indenture; and
WHEREAS all things necessary to make this Supplemental Indenture a valid
agreement, in accordance with its terms, have been done.
NOW THEREFORE, this Supplemental Indenture witnesseth that, for and in
consideration of the premises, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
AMENDMENTS TO INDENTURE
SECTION 1.01. Amendments to Articles One, Three, Four, Five and
Six.
(a) Sections 3.09 (Offer to Purchase by Application of Excess Proceeds),
4.03 (SEC Reports), 4.04 (Compliance Certificates), 4.07 (Limitation on
Restricted Payments), 4.08 (Limitation on Distributions from Restricted
Subsidiaries), 4.09 (Limitation on Incurrence of Indebtedness), 4.10 (Limitation
on Asset Dispositions), 4.11 (Limitation on Transactions with Affiliates), 4.12
(Limitation on Liens), 4.13 (Corporate Existence), 4.14 (Change of Control),
5.01(a)(3), (a)(4) and (b)(3) and 6.01(a)(4), (a)(6) and (a)(7) of the Indenture
are hereby amended by deleting all such sections and all references to such
sections in their entirety;
(b) A new Section 4.03 shall be inserted which reads:
"Website Access
So long as any Notes are outstanding and the Company maintains a
website pursuant to its obligations under Section 4.03 of the Indenture, dated
as of May 9, 2007, by and among the Company, the Guarantors named therein and
U.S. Bank National Association, as trustee, the Company shall provide the
Trustee and the Holders access to such site; provided, however, if the Company
shall cease to have an obligation under said Section 4.03 it shall have no
further obligation under this Section 4.03; and provided further, in no event
shall this provision be deemed to require the Company to provide the Trustee or
the Holders with any information."
(c) References to Significant Subsidiaries in Section 6.01(a)(9) and
(a)(10) of the Indenture are hereby deleted in their entirety; and
(d) All definitions set forth in Section 1.01 of the Indenture that
relate to defined terms used solely in covenants or sections deleted hereby are
deleted in their entirety.
ARTICLE II
MISCELLANEOUS
SECTION 2.01. Instruments To Be Read Together. This Supplemental Indenture
is an indenture supplemental to and in implementation of the Indenture, and said
Indenture and this Supplemental Indenture shall henceforth be read together.
SECTION 2.02. Confirmation. The Indenture as amended and supplemented by
this Supplemental Indenture is in all respects confirmed and preserved.
SECTION 2.03. Terms Defined. Capitalized terms used in this Supplemental
Indenture have been inserted for convenience of reference only, and are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
SECTION 2.04. Headings. The headings of the Articles and Sections of this
Supplemental Indenture have been inserted for convenience of reference only, and
are not to be considered a part hereof and shall in no way modify or restrict
any of the terms and provisions hereof.
SECTION 2.05. Governing Law. The laws of the State of New York shall
govern this Supplemental Indenture.
SECTION 2.06. Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 2.07. Effectiveness; Termination. The provisions of this
Supplemental Indenture will take effect immediately upon its execution and
delivery by the Trustee in accordance with the provisions of Sections 9.02 and
9.06 of the Indenture.
SECTION 2.08. Responsibility of Trustee. The recitals contained herein
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
NORTH ATLANTIC TRADING COMPANY, INC.
By: /s/ Brian C. Harriss
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Name: Brian C. Harriss
Title: Senior Vice President and
Chief Financial Officer
FRED STOKER & SONS, INC.
By: /s/ Brian C. Harriss
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Name: Brian C. Harriss
Title:Vice President
NATIONAL TOBACCO COMPANY, L.P.
By: National Tobacco Finance Corporation,
its sole general partner
By: /s/ Brian C. Harriss
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Name: Brian C. Harriss
Title: Vice President
NATIONAL TOBACCO FINANCE CORPORATION
By: /s/ Brian C. Harriss
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Name: Brian C. Harriss
Title: Vice President
NORTH ATLANTIC CIGARETTE COMPANY, INC.
By: /s/ Brian C. Harriss
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Name: Brian C. Harriss
Title: Vice President
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NORTH ATLANTIC OPERATING COMPANY, INC.
By: /s/ Brian C. Harriss
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Name: Brian C. Harriss
Title: Vice President
RBJ SALES, INC.
By: /s/ Brian C. Harriss
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Name: Brian C. Harriss
Title: Vice President
STOKER, INC.
By: /s/ Brian C. Harriss
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Name: Brian C. Harriss
Title: Vice President
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WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Jane Y. Schweiger
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Name: Jane Y. Schweiger
Title: Vice President
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