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INDENTURE
Dated as of May 13, 1998
among
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC.,
as Issuer,
INTERNATIONAL COMFORT PRODUCTS CORPORATION,
as Guarantor,
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
---------------
up to $225,000,000
8 5/8% Senior Notes due 2008, Series A
8 5/8% Senior Notes due 2008, Series B
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
310(a)(1)..................................................7.10
(a)(2)..................................................7.10
(a)(3)..................................................N.A.
(a)(4)..................................................N.A.
(a)(5)..................................................7.10
(b).....................................................7.08; 7.10
(c).....................................................N.A.
311(a).....................................................7.11
(b).....................................................7.11
(c).....................................................N.A.
312(a).....................................................2.05
(b).....................................................11.03
(c).....................................................11.03
313(a).....................................................7.06
(b)(1)..................................................7.06
(b)(2)..................................................7.06; 7.07
(c).....................................................7.05; 7.06;11.02
(d).....................................................7.06
314(a).....................................................4.08; 4.10;11.02
(b).....................................................N.A.
(c)(1)..................................................4.08; 11.04
(c)(2)..................................................11.04
(c)(3...................................................4.08; 11.04
(d).....................................................N.A.
(e).....................................................11.05
(f).....................................................N.A.
315(a).....................................................7.01(b)
(b).....................................................7.05; 11.02
(c).....................................................7.01(a)
(d).....................................................7.01(c)
(e).....................................................6.11
316(a)(last sentence)......................................2.09
(a)(1)(A)...............................................6.05
(a)(1)(B)...............................................6.04
(a)(2)..................................................N.A.
(b).....................................................6.07; 9.04
(c).....................................................9.04
317(a)(1)..................................................6.08
(a)(2)..................................................6.09
(b).....................................................2.04
318(a).....................................................11.01
(c).....................................................11.01
------------------------------
"N.A." means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..............................1
SECTION 1.02. Incorporation by Reference of TIA........24
SECTION 1.03. Rules of Construction....................24
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating..........................25
SECTION 2.02. Execution and Authentication.............26
SECTION 2.03. Registrar and Paying Agent...............27
SECTION 2.04. Paying Agent To Hold Assets in Trust.....27
SECTION 2.05. Securityholder Lists.....................28
SECTION 2.06. Transfer and Exchange....................28
SECTION 2.07. Replacement Securities...................29
SECTION 2.08. Outstanding Securities...................29
SECTION 2.09. Treasury Securities......................30
SECTION 2.10. Temporary Securities.....................30
SECTION 2.11. Cancellation.............................30
SECTION 2.12. Defaulted Interest.......................31
SECTION 2.13. CUSIP Number.............................31
SECTION 2.14. Deposit of Moneys........................31
SECTION 2.15. Book-Entry Provisions for Global
Securities.............................32
SECTION 2.16. Registration of Transfers and
Exchanges..............................33
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.......................38
SECTION 3.02. Selection of Securities To Be Redeemed...38
SECTION 3.03. Notice of Redemption.....................39
SECTION 3.04. Effect of Notice of Redemption...........40
SECTION 3.05. Deposit of Redemption Price..............40
SECTION 3.06. Securities Redeemed in Part..............41
-i-
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities....................41
SECTION 4.02. Maintenance of Office or Agency..........41
SECTION 4.03 Limitation on Incurrence of
Additional Indebtedness................42
SECTION 4.04. Limitation on Restricted Payments........42
SECTION 4.05. Corporate Existence......................44
SECTION 4.06. Payment of Taxes and Other Claims........44
SECTION 4.07. Maintenance of Properties and
Insurance..............................45
SECTION 4.08. Compliance Certificate;
Notice of Default......................46
SECTION 4.09. Compliance with Laws.....................46
SECTION 4.10. SEC Reports..............................47
SECTION 4.11. Waiver of Stay, Extension or Usury
Laws...................................47
SECTION 4.12. Limitation on Asset Sales................48
SECTION 4.13. Limitation on Dividend and Other
Payment Restrictions Affecting
Restricted Subsidiaries................51
SECTION 4.14. Limitation on Preferred Stock of
Restricted Subsidiaries................52
SECTION 4.15. Limitation on Liens......................52
SECTION 4.16. [Intentionally Omitted]..................53
SECTION 4.17. [Intentionally Omitted]..................53
SECTION 4.18. Limitations on Transactions with
Affiliates.............................53
SECTION 4.19. [Intentionally Omitted]..................54
SECTION 4.20. [Intentionally Omitted]..................54
SECTION 4.21. Conduct of Business......................54
SECTION 4.22. Payments for Consent.....................54
SECTION 4.23. Limitation on Designations of
Unrestricted Subsidiaries..............54
SECTION 4.24. Change of Control........................56
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Amalgamation, Consolidations
and Sales of Assets....................58
SECTION 5.02. Successor Corporation Substituted........60
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default........................61
SECTION 6.02. Acceleration.............................63
SECTION 6.03. Other Remedies...........................64
SECTION 6.04. Waiver of Past Defaults..................64
SECTION 6.05. Control by Majority......................65
SECTION 6.06. Limitation on Suits......................65
SECTION 6.07. Rights of Holders To Receive Payment.....66
SECTION 6.08. Collection Suit by Trustee...............66
SECTION 6.09. Trustee May File Proofs of Claim.........66
SECTION 6.10. Priorities...............................67
SECTION 6.11. Undertaking for Costs....................67
SECTION 6.12. Restoration of Rights and Remedies.......68
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee........................68
SECTION 7.02. Rights of Trustee........................70
SECTION 7.03. Individual Rights of Trustee.............71
SECTION 7.04. Trustee's Disclaimer.....................71
SECTION 7.05. Notice of Default........................72
SECTION 7.06. Reports by Trustee to Holders............72
SECTION 7.07. Compensation and Indemnity...............72
SECTION 7.08. Replacement of Trustee...................74
SECTION 7.09. Successor Trustee by Merger, Etc.........75
SECTION 7.10. Eligibility; Disqualification............75
SECTION 7.11. Preferential Collection of Claims
Against Company........................76
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant
Defeasance.............................76
SECTION 8.02. Satisfaction and Discharge...............80
SECTION 8.03. Survival of Certain Obligations..........81
SECTION 8.04. Acknowledgment of Discharge by Trustee...81
SECTION 8.05. Application of Trust Assets..............82
SECTION 8.06. Repayment to the Company or the
Guarantor; Unclaimed Money.............82
SECTION 8.07. Reinstatement............................83
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders...............83
SECTION 9.02. With Consent of Holders..................84
SECTION 9.03. Compliance with TIA......................86
SECTION 9.04. Revocation and Effect of Consents........86
SECTION 9.05. Notation on or Exchange of Securities....87
SECTION 9.06. Trustee To Sign Amendments, Etc..........87
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee.................87
SECTION 10.02. Severability............................89
SECTION 10.03. Waiver of Subrogation...................89
SECTION 10.04. Execution of Guarantees.................89
SECTION 10.05. Waiver of Stay, Extension or
Usury Laws............................90
SECTION 10.06. Payments of Additional Amounts..........90
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls............................92
SECTION 11.02. Notices.................................92
SECTION 11.03. Communications by Holders with
Other Holders.........................93
SECTION 11.04. Certificate and Opinion as to
Conditions Precedent..................93
SECTION 11.05. Statements Required in Certificate
or Opinion............................93
SECTION 11.06. Rules by Trustee, Paying Agent,
Registrar.............................94
SECTION 11.07. Legal Holidays..........................94
SECTION 11.08. Governing Law...........................94
SECTION 11.09. No Adverse Interpretation of
Other Agreements......................95
SECTION 11.10. No Recourse Against Others..............95
SECTION 11.11. Successors..............................95
SECTION 11.12. Duplicate Originals.....................95
SECTION 11.13. Severability............................95
SECTION 11.14. Table of Contents, Headings, Etc........95
SECTION 11.15. Agent for Service; Submission to
Jurisdiction; Waiver of Immunities....96
SECTION 11.16. Judgment Currency.......................97
-iv-
Exhibit A - Form of Series A Security
Exhibit B - Form of Series B Security
Exhibit C - Form of Legend for Global Securities
Exhibit D - Transfer Certificate
Exhibit E - Transferee Certificate for Institutional Accredited
Investors
Exhibit F - Transferee Certificate for Regulation S Transfers
Note: This Table of Contents shall not, for any purpose, be deemed
to be a part of the Indenture.
-v-
INDENTURE dated as of May 13, 1998, among INTERNATIONAL COMFORT
PRODUCTS HOLDINGS, INC., a Delaware corporation (the "Company" or the
"Issuer"), as Issuer, INTERNATIONAL COMFORT PRODUCTS CORPORATION, a
corporation organized under the Canada Business Corporations Act (the
"Guarantor"), as Guarantor, and UNITED STATES TRUST COMPANY OF NEW YORK, as
Trustee (the "Trustee").
The Company has duly authorized the issue of 8 5/8% Senior Notes
due 2008, Series A, and 8 5/8% Senior Notes due 2008, Series B, to be
issued in exchange for the Series A Securities, pursuant to the
Registration Rights Agreement and, to provide therefor, the Company has
duly authorized the execution and delivery of this Indenture. All things
necessary to make the Securities, when duly issued and executed by the
Company and authenticated and delivered hereunder, the valid and binding
obligations of the Company, and to make this Indenture a valid and binding
agreement of the Company, have been done.
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the
Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Accounts Receivable Subsidiary" means any Restricted Subsidiary
that is organized solely for the purpose of and engaged solely in (i)
purchasing, financing and collecting accounts receivable obligations of
customers of the Guarantor and its Restricted Subsidiaries; (ii) the sale
or financing of such accounts receivable; and (iii) other activities
incident thereto.
"Acquired Indebtedness" means Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary or at the time it merges or consolidates with the Guarantor or
any of the Restricted Subsidiaries or assumed in connection with the
acquisition of assets from such Person and in each case not incurred by
such Person in connection with, or in anticipation or contemplation of,
such Person becoming a Restricted Subsidiary or such acquisition, merger or
consolidation.
-2-
"Affiliate" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such
specified Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative of the foregoing.
"Affiliate Transaction" has the meaning provided in Section 4.18.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Acquisition" means (a) an Investment by the Guarantor or
any Restricted Subsidiary in any other Person pursuant to which such Person
shall become a Restricted Subsidiary, or shall be merged with or into the
Guarantor or any Restricted Subsidiary, or (b) the acquisition by the
Guarantor or any Restricted Subsidiary of the assets of any Person (other
than a Restricted Subsidiary) which constitute all or substantially all of
the assets of such Person or comprises any division or line of business of
such Person or any other properties or assets of such Person other than in
the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in
the ordinary course of business), assignment or other transfer for value by
the Guarantor or any of the Restricted Subsidiaries (including any Sale and
Leaseback Transaction) to any Person other than the Guarantor or a
Restricted Subsidiary of (a) any Capital Stock of any Restricted Subsidiary
other than of an Assuming Party in connection with a Domestication Event;
or (b) any other property or assets of the Guarantor or any Restricted
Subsidiary other than in the ordinary course of business; PROVIDED,
HOWEVER, that Asset Sales shall not include (i) a transaction or series of
related transactions for which the Guarantor or the Restricted Subsidiaries
receive aggregate consideration of less than $1.0 million, (ii) the sale,
lease, conveyance, disposition or other transfer of all or substantially
all of the assets of the Guarantor as permitted by Article Five hereof;
(iii) any sale of accounts receivable or inventories in the normal course
of business (including sales by an Accounts Receivable Subsidiary) or in
connection with the sale of a distribution business or a sale of a
-3-
Restricted Subsidiary principally engaged in a distribution business; (iv)
any sale of Excluded Assets.
"Assuming Party" means a corporation organized by the Guarantor
under the laws of the United States, any State thereof, or the District of
Columbia for the purpose of succeeding to the business of the Guarantor in
a Domestication Event.
"Bankruptcy Law" means Title 11, U.S. Code, the Companies
Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act
(Canada) or any similar Federal, state or foreign law for the relief of
debtors.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means any day other than a Saturday, Sunday or any
other day on which banking institutions in the City of New York or the City
of Nashville are required or authorized by law or other governmental action
to be closed.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified
and accounted for as capital lease obligations under GAAP and, for purposes
of this definition, the amount of such obligations at any date shall be the
capitalized amount of such obligations at such date, determined in
accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other
equivalents (however designated and whether or not voting) of corporate
stock, including each class of Common Stock and Preferred Stock of such
Person and options, warrants or other rights to acquire the same and (ii)
with respect to any Person that is not a corporation, any and all
partnership or other equity interests of such Person.
-4-
"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state
of the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within one year from
the date of acquisition thereof and, at the time of acquisition, having one
of the two highest ratings obtainable from either Standard & Poor's
Corporation ("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S"); (iii)
commercial paper maturing no more than one year from the date of creation
thereof and, at the time of acquisition, having a rating of at least A-1
from S&P or at least P-1 from Moody's; (iv) certificates of deposit or
bankers' acceptances maturing within one year from the date of acquisition
thereof issued by any bank organized under the laws of the United States of
America or any state thereof or the District of Columbia or any U.S. branch
of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $250,000,000; (v) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any
bank meeting the qualifications specified in clause (iv) above; and (vi)
investments in money market funds which invest substantially all their
assets in securities of the types described in clauses (i) through (v)
above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially
all of the assets of the Guarantor (other than to an Assuming Party in a
Domestication Event) to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a "GROUP"), together with any
Affiliates thereof (whether or not otherwise in compliance with the
provisions of this Indenture); (ii) the approval by the holders of Capital
Stock of the Guarantor of any plan or proposal for the liquidation or
dissolution of the Guarantor (whether or not otherwise in compliance with
the provisions of this Indenture) (other than in connection with a
Domestication Event if (x) such plan or proposal will not be effected until
after the Assuming Party has been substituted for the Guarantor as provided
in this Indenture and (y) after giving effect to such Domestication Event,
no Person or Group shall become the beneficial owner, directly or
indirectly, of shares representing more than 50% of the aggregate voting
power represented by the issued and outstanding Capital Stock of the
-5-
Assuming Party); or (iii) any Person or Group shall become the beneficial
owner, directly or indirectly, of shares representing more than 50% of the
aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Guarantor other than shares of Capital Stock of the
Guarantor acquired by the Assuming Party in connection with a Domestication
Event.
"Change of Control Date" has the meaning provided in
Section 4.24.
"Change of Control Offer" has the meaning provided in
Section 4.24.
"Change of Control Payment Date" has the meaning provided in
Section 4.24.
"Commission" means the Securities and Exchange Commission.
"Common Stock" of any Person means any and all shares, interests
or other participations in, and other equivalents (however designated and
whether voting or non-voting) of such Person's common stock, whether
outstanding on the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" or the "Issuer" means the party named as such in this
Indenture until a successor replaces it pursuant to this Indenture and
thereafter means such successor.
"Consolidated EBITDA" means, with respect to the Guarantor, for
any period, the sum (without duplication) of (i) Consolidated Net Income
and (ii) to the extent Consolidated Net Income has been reduced thereby,
(A) all income taxes of the Guarantor and the Restricted Subsidiaries paid
or accrued in accordance with GAAP for such period (other than income taxes
attributable to extraordinary, unusual or nonrecurring gains or losses or
taxes attributable to sale or dispositions outside the ordinary course of
business), (B) Consolidated Interest Expense and (C) Consolidated Non-cash
Charges, LESS any non-cash items increasing Consolidated Net Income in
excess of $3.0 million for such period, all as determined on a consolidated
basis for the Guarantor and the Restricted Subsidiaries in accordance with
GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
the Guarantor, the ratio of Consolidated EBITDA of the Guarantor during the
-6-
four full fiscal quarters (the "FOUR QUARTER PERIOD") ending on or prior to
the date of the transaction giving rise to the need to calculate the
Consolidated Fixed Charge Coverage Ratio (the "TRANSACTION DATE") to
Consolidated Fixed Charges of the Guarantor for the Four Quarter Period.
In addition to and without limitation of the foregoing, for purposes of
this definition, "Consolidated EBITDA" and "Consolidated Fixed Charges"
shall be calculated after giving effect on a pro forma basis for the period
of such calculation to (i) the incurrence or repayment of any Indebtedness
of the Guarantor or any of the Restricted Subsidiaries (and the application
of the proceeds thereof) giving rise to the need to make such calculation
and any incurrence or repayment of other Indebtedness (and the application
of the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital
purposes pursuant to working capital facilities, occurring during the Four
Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter Period and
(ii) any asset sales or other disposition or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make
such calculation as a result of the Guarantor or one of the Restricted
Subsidiaries (including any person who becomes a Restricted Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being
liable for Acquired Indebtedness and also including any Consolidated EBITDA
(provided that such Consolidated EBITDA shall be included only to the
extent includable pursuant to the definition of "Consolidated Net Income"
attributable to the assets which are the subject of the Asset Acquisition
or asset sale or other disposition during the Four Quarter Period)
occurring during the Four Quarter Period or at any time subsequent to the
last day of the Four Quarter Period and on or prior to the Transaction Date
as if such Asset Acquisition or asset sale or other disposition (including
the incurrence, assumption or liability for any such Acquired Indebtedness)
occurred on the first day of the Four Quarter Period. If the Guarantor or
any of the Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give effect to
the incurrence of such guaranteed Indebtedness as if the Guarantor or any
Restricted Subsidiary had directly incurred or otherwise assumed such
guaranteed Indebtedness. Furthermore, in calculating "Consolidated Fixed
Charges" for purposes of determining the denominator (but not the
numerator) of this "Consolidated Fixed Charge Coverage Ratio," (1) interest
on outstanding Indebtedness determined on a fluctuating basis as of the
-7-
Transaction Date and which will continue to be so determined thereafter
shall be deemed to have accrued at a fixed rate per annum equal to the rate
of interest on such Indebtedness in effect on the Transaction Date; (2) if
interest on any Indebtedness actually incurred on the Transaction Date may
optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate, or other rates,
then the interest rate in effect on the Transaction Date will be deemed to
have been in effect during the Four Quarter Period; and (3) notwithstanding
clause (1) above, interest on Indebtedness determined on a fluctuating
basis, to the extent such interest is covered by agreements relating to
Interest Swap Obligations, shall be deemed to accrue at the rate per annum
resulting after giving effect to the operation of such agreements.
"Consolidated Fixed Charges" means, with respect to the Guarantor
for any period, the sum, without duplication, of (i) Consolidated Interest
Expense, plus (ii) the product of (x) the amount of all dividend payments
on any series of Preferred Stock of the Guarantor (other than dividends
paid in Qualified Capital Stock) paid, accrued or scheduled to be paid or
accrued during such period times (y) a fraction, the numerator of which is
one and the denominator of which is one minus the then current effective
consolidated foreign, federal, state, provincial and local income tax rate
of the Guarantor, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to the
Guarantor for any period, the sum of, without duplication: (i) the
aggregate of the interest expense (net of interest income) of the Guarantor
and the Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including, without limitation,
(a) any amortization of debt discount, (b) the net costs under Interest
Swap Obligations, (c) all capitalized interest and (d) the interest portion
of any deferred payment obligation; and (ii) the interest component of
Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by the Guarantor and the Restricted Subsidiaries during such period
as determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to the Guarantor,
for any period, the aggregate net income (or loss) of the Guarantor and the
Restricted Subsidiaries for such period on a consolidated basis, determined
in accordance with GAAP; PROVIDED that there shall be excluded therefrom
-8-
(i) after-tax gains and losses from Asset Sales or abandonments or reserves
relating thereto, (ii) extraordinary or nonrecurring gains, (iii) the net
income of any Person acquired in a "pooling of interests" transaction
accrued prior to the date it becomes a Restricted Subsidiary or is merged
or consolidated with the Guarantor or any Restricted Subsidiary, (iv) the
net income (but not loss) of any Restricted Subsidiary to the extent that
the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is restricted by a contract, operation of law or
otherwise (other than any such restriction permitted pursuant to clauses
(5), (6) and (7) of Section 4.13), (v) the net income of any Person, other
than a Restricted Subsidiary, except to the extent of cash dividends or
distributions paid to the Guarantor or to a Restricted Subsidiary by such
person, (vi) any restoration to income of any contingency reserve, except
to the extent that provision for such reserve was made out of Consolidated
Net Income accrued at any time following the Issue Date, (vii) income or
loss attributable to discontinued operations (including, without
limitation, operations disposed of during such period whether or not such
operations were classified as discontinued) and (viii) in the case of a
successor to the Guarantor by consolidation or merger or as a transferee of
the Guarantor's assets, any earnings of the successor corporation prior to
such consolidation, merger or transfer of assets.
"Consolidated Non-cash Charges" means, with respect to the
Guarantor, for any period, the aggregate depreciation, amortization and
other non-cash expenses of the Guarantor and the Restricted Subsidiaries
reducing Consolidated Net Income of the Guarantor for such period,
determined on a consolidated basis in accordance with GAAP (excluding any
such charges in excess of $3.0 million in the aggregate during such period
which require an accrual of or a reserve for cash charges for any future
period).
"Covenant Defeasance" has the meaning provided in Section 8.01.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed
to protect the Guarantor or any Restricted Subsidiary against fluctuations
in currency values.
"Custodian" means any receiver, receiver-manager, trustee,
assignee, liquidator, sequestrator or similar official under any Bankruptcy
Law.
-9-
"Default" means an event or condition the occurrence of which is,
or with the lapse of time or the giving of notice or both would be, an
Event of Default.
"Depository" means, with respect to the Securities issued in the
form of one or more Global Securities, The Depository Trust Company or
another Person designated as Depository by the Company, which must be a
clearing agency registered under the Exchange Act.
"Designation" has the meaning provided in Section 4.23.
"Designation Amount" has the meaning provided in Section 4.23.
"Disqualified Capital Stock" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is mandatorily exchangeable for Indebtedness,
or is redeemable, or exchangeable for Indebtedness, at the sole option of
the holder thereof on or prior to the final maturity date of the
Securities, in each case other than redemptions or exchanges in which the
consideration to be received is Qualified Capital Stock.
"Domestication Event" means a transaction or series of
transactions pursuant to which an Assuming Party succeeds to the business
of the Guarantor, through the direct or indirect acquisition of the
Guarantor or by which the Guarantor becomes a Subsidiary of the Assuming
Party or the Assuming Party otherwise acquires directly or indirectly all
or substantially all the assets of the Guarantor, and in any case assumes
the liabilities of the Guarantor, provided that (i) the Assuming Party
concurrently assumes the obligations of the Guarantor under the Guarantee
and this Indenture pursuant to a supplemental indenture (in form reasonably
satisfactory to the Trustee) executed and delivered to the Trustee, (ii)
immediately before and immediately after giving effect to such transaction
and the assumption contemplated by clause (i) above, no Default or Event of
Default shall have occurred and be continuing, and (iii) the Guarantor and
the Assuming Party shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that the Domestication Event
and the supplemental indenture required in connection with the
Domestication Event comply with the applicable provisions of this Indenture
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and that all conditions precedent in this Indenture relating to the
Domestication Event have been satisfied.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Excluded Assets" means the property and assets located at the
research, development and training center in LaVergne, Tennessee and the
distribution facility in Brantford, Ontario.
"fair market value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able
buyer, neither of whom is under undue pressure or compulsion to complete
the transaction. Fair market value shall be determined by the Board of
Directors of the Issuer acting reasonably and in good faith and shall be
evidenced by a Board Resolution of the Board of Directors of the Issuer
delivered to the Trustee.
"Final Maturity Date" means May 15, 2008.
"Four Quarter Period" has the meaning provided in the definition
of "Consolidated Fixed Charge Coverage Ratio" above.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Canadian Institute of Chartered
Accountants.
"Global Security" means a security evidencing all or a part of
the Securities issued to the Depository in accordance with Section 2.01 and
bearing the legend prescribed in EXHIBIT C.
"Guarantee" means the obligations of the Guarantor under Article
Ten hereof.
"Guarantor" means the party named as such in this Indenture until
a successor replaces it pursuant to this Indenture and thereafter means
such successor.
"Holder" or "Securityholder" means a Person in whose name a
Security is registered on the Registrar's books.
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"incur" has the meaning provided in Section 4.03.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all Obligations of such Person for borrowed money, (ii)
all Obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all Capitalized Lease Obligations of such
Person, (iv) all Obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations and
all Obligations under any title retention agreement (but excluding trade
accounts payable and other accrued liabilities arising in the ordinary
course of business that are not overdue by 90 days or more or are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted), (v) all Obligations for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction, (vi) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (i) through (v) above and clause (viii)
below, (vii) all Obligations of any other Person of the type referred to in
clauses (i) through (vi) which are secured by any Lien on any property or
asset of such Person, the amount of such Obligation being deemed to be the
lesser of the fair market value of such property or asset or the amount of
the Obligation so secured, (viii) all Obligations under currency agreements
and interest swap agreements of such Person and (ix) all Disqualified
Capital Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Capital Stock being equal to the greater
of its voluntary or involuntary liquidation preference and its maximum
fixed repurchase price, but excluding accrued dividends, if any. For
purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock
as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture,
and if such price is based upon, or measured by, the fair market value of
such Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of
such Disqualified Capital Stock. "Indebtedness," shall not be deemed to
include customary indemnity obligations of the Guarantor or a Restricted
Subsidiary incurred in connection with an Asset Sale or warranty
obligations of the Guarantor or a Restricted Subsidiary incurred in the
ordinary course of business.
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"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent" when used with respect to any specified Person
means such a Person who (a) is in fact independent; (b) does not have any
direct financial interest or any material indirect financial interest in
the Company or any of its Subsidiaries, or in any Affiliate of the Company
or any of its Subsidiaries; and (c) is not an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar
functions for the Company or any of its Subsidiaries. Whenever it is
provided in this Indenture that any Independent Person's opinion or
certificate shall be furnished to the Trustee, such Person shall be
appointed by the Company, and such opinion or certificate shall state that
the signer has read this definition and that the signer is Independent
within the meaning hereof.
"Independent Financial Advisor" means a firm (i) which does not,
and whose directors, officers and employees and Affiliates do not, have a
direct or indirect financial interest in the Guarantor or any of the
Restricted Subsidiaries and (ii) which, in the judgment of the Board of
Directors of the Guarantor, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"Initial Purchasers" means Salomon Brothers Inc, Credit Suisse
First Boston Corporation and First Union Capital Markets, a division of
Wheat First Securities, Inc.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Securities.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of
interest on a stated notional amount in exchange for periodic payments made
by such other Person calculated by applying a fixed or a floating rate of
interest on the same notional amount and shall include, without limitation,
interest rate swaps, caps, floors, collars and similar agreements.
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"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation,
a guarantee) to 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 or acquisition by such
Person of any Capital Stock, bonds, notes, debentures or other securities
or evidences of Indebtedness issued by, any Person. "Investment" shall
exclude extensions of trade credit by the Guarantor and the Restricted
Subsidiaries on commercially reasonable terms in accordance with normal
trade practices of the Guarantor or such Restricted Subsidiary, as the case
may be. If the Guarantor or any Restricted Subsidiary sells or otherwise
disposes of any Capital Stock of any Restricted Subsidiary (the "Referent
Subsidiary") such that, after giving effect to any such sale or disposition
the Referent Subsidiary shall cease to be a Restricted Subsidiary, the
Guarantor shall be deemed to have made an Investment on the date of any
such sale or disposition equal to the fair market value of the Capital
Stock of the Referent Subsidiary not sold or disposed of.
"Issue Date" means the date of original issuance of the
Securities.
"Judgment Currency" has the meaning provided in Section 11.16.
"Legal Defeasance" has the meaning provided in Section 8.01.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale
or other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents, including payments in
respect of deferred payment obligations, when received in the form of cash
or Cash Equivalents (other than the portion of any such deferred payment
constituting interest) received by the Guarantor or any of the Restricted
Subsidiaries from such Asset Sale net of (a) reasonable out-of-pocket
expenses and fees relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees and sales
commissions), (b) taxes paid or payable after taking into account any
reduction in consolidated tax liability due to available tax credits or
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deductions and any tax sharing arrangements, (c) repayments of Indebtedness
secured by the property or assets subject to such Asset Sale that is
required to be repaid in connection with such Asset Sale and (d)
appropriate amounts to be provided by the Guarantor 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
Guarantor 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.
"Net Proceeds Offer" has the meaning provided in Section 4.12.
"Net Proceeds Offer Amount" has the meaning provided in
Section 4.12.
"Net Proceeds Offer Payment Date" has the meaning provided in
Section 4.12.
"Net Proceeds Offer Trigger Date" has the meaning provided in
Section 4.12.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and
other liabilities payable under the documentation governing any
Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Controller, or the Secretary of such Person.
"Officers' Certificate" means a certificate signed by two
Officers of the Company.
"Offshore Physical Securities" has the meaning provided in
Section 2.01.
"Opinion of Counsel" means a written opinion from legal counsel
which and who are acceptable to the Trustee.
"Participants" has the meaning provided in Section 2.15.
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"Paying Agent" has the meaning provided in Section 2.03.
"Permitted Indebtedness" means, without duplication, each of the
following:
(i) Indebtedness under the Securities, this Indenture and the
Guarantee in an aggregate principal amount not to exceed $150.0
million;
(ii) Indebtedness in an aggregate principal amount at any time
outstanding not to exceed on the date of incurrence the greater
of (x) $100.0 million, and (y) the sum of (a) 85% of the net book
value of accounts receivable of the Guarantor and the Restricted
Subsidiaries and (b) 65% of the net book value of the inventory
of the Guarantor and the Restricted Subsidiaries;
(iii) Interest Swap Obligations of the Guarantor and the
Restricted Subsidiaries covering Indebtedness of the Guarantor or
any Restricted Subsidiary; PROVIDED, HOWEVER, that such Interest
Swap Obligations are entered into to protect the Guarantor and
the Restricted Subsidiaries from fluctuations in interest rates
on Indebtedness incurred in accordance with this Indenture to the
extent the notional principal amount of such Interest Swap
Obligations does not exceed the principal amount of the
Indebtedness to which such Interest Swap Obligations relate;
(iv) Indebtedness under Currency Agreements; PROVIDED that in
the case of Currency Agreements which relate to Indebtedness,
such Currency Agreements do not increase the Indebtedness of the
Guarantor and the Restricted Subsidiaries outstanding other than
as a result of fluctuations in foreign currency exchange rates or
by reason of fees, indemnities and compensation payable
thereunder;
(v) Indebtedness of a Restricted Subsidiary to the Guarantor
or a Restricted Subsidiary for so long as such Indebtedness is
held by the Guarantor or a Restricted Subsidiary, in each case
subject to no Lien held by a Person other than the Guarantor or a
Restricted Subsidiary; PROVIDED that if as of any date any Person
other than the Guarantor or a Restricted Subsidiary owns or holds
any such Indebtedness or holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness by the
issuer of such Indebtedness.
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(vi) Indebtedness of the Guarantor to a Restricted Subsidiary
for so long as such Indebtedness is held by a Restricted
Subsidiary, in each case subject to no Lien; PROVIDED that (a)
any Indebtedness of the Guarantor to any Restricted Subsidiary is
unsecured and subordinated, pursuant to a written agreement, to
the Guarantor's obligations under this Indenture and the
Guarantee and (b) if as of any date any person other than a
Restricted Subsidiary owns or holds any such Indebtedness or any
Person holds a Lien in respect of such Indebtedness, such date
shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness by the Guarantor;
(vii) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar
instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary
course of business; PROVIDED, HOWEVER, that such Indebtedness is
extinguished within five business days of incurrence;
(viii) Indebtedness of the Guarantor or any of the Restricted
Subsidiaries represented by letters of credit for the account of
the Guarantor or such Restricted Subsidiary, as the case may be,
in order to provide security for workers' compensation claims,
payment obligations in connection with self-insurance or similar
requirements in the ordinary course of business;
(ix) Refinancing Indebtedness;
(x) Purchase Money Indebtedness and Capitalized Lease
Obligations (and any Indebtedness incurred to Refinance such
Purchase Money Indebtedness or Capitalized Lease Obligations) not
to exceed $15.0 million at any one time outstanding; and
(xi) Indebtedness of the Guarantor and the Restricted
Subsidiaries in an aggregate principal amount not to exceed $20.0
million at any one time outstanding.
"Permitted Investments" means (i) Investments by the Guarantor or
any Restricted Subsidiary in any Person that is or will become immediately
after such Investment a Restricted Subsidiary or that will merge or
consolidate into the Guarantor or a Restricted Subsidiary; (ii) Investments
in the Guarantor by any Restricted Subsidiary; PROVIDED that any
Indebtedness evidencing such Investment is unsecured and subordinated,
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pursuant to a written agreement, to the Guarantor's obligations under the
Guarantee and this Indenture; (iii) Investments in cash and Cash
Equivalents; (iv) loans and advances to employees and officers of the
Guarantor and the Restricted Subsidiaries in the ordinary course of
business for bona fide business purposes not in excess of $2.0 million at
any time outstanding; (v) Currency Agreements and Interest Swap Obligations
entered into in the ordinary course of the Guarantor's or a Restricted
Subsidiary's businesses and otherwise in compliance with this Indenture;
(vi) Investments in securities of trade creditors or customers received
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers, or the
refinancing of, or a settlement of amounts due under, one or more trade
accounts extended in the normal course of business to customers of the
Guarantor or a Restricted Subsidiary which are in default under their
standard credit terms; (vii) Investments made by the Guarantor or the
Restricted Subsidiaries as a result of consideration received in connection
with an Asset Sale made in compliance with Section 4.12; (viii) Investments
of the Guarantor in Qualified Capital Stock of an Assuming Party; and (ix)
Investments in Persons, including, without limitation, Unrestricted
Subsidiaries and joint ventures, engaged in a business similar or related
to the businesses in which the Guarantor and the Restricted Subsidiaries
are engaged on the Issue Date not to exceed $15.0 million at any one time
outstanding.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or
claims either (a) not delinquent or (b) contested in good faith
by appropriate proceedings and as to which the Guarantor shall
have set aside on its books such reserves as may be required
pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and
other Liens imposed by law incurred in the ordinary course of
business for sums not yet delinquent or being contested in good
faith, if such reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made in respect
thereof;
(iii) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation,
unemployment insurance and other types of social security,
including any Lien securing letters of credit issued in the
ordinary course of business consistent with past practice in
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connection therewith, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the
payment of borrowed money);
(iv)judgment Liens not giving rise to an Event of Default so long
as such Lien is adequately bonded and any appropriate legal
proceeds which may have been duly initiated for the review of
such judgment shall not have been finally terminated or the
period within which such proceedings may be initiated shall not
have expired;
(v) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of
the business of the Guarantor;
(vi) purchase money Liens securing Indebtedness to finance
property or assets of the Guarantor, and Liens securing
Indebtedness which Refinances any such Indebtedness; PROVIDED,
HOWEVER, that (A) the related purchase money Indebtedness (or
Refinancing Indebtedness) shall not exceed the cost of such
property or assets and shall not be secured by any property or
assets of the Guarantor other than the property and assets so
acquired and (B) the Lien securing the purchase money
Indebtedness shall be created within 90 days of such acquisition;
(vii) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person's obligations in
respect of bankers' acceptances issued or created for the account
of such Person to facilitate the purchase, shipment or storage of
such inventory or other goods;
(viii) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and
proceeds thereof;
(ix) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty
requirements of the Guarantor, including rights of offset and
set-off;
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(x) Liens securing Interest Swap Obligations, which Interest
Swap Obligations related to Indebtedness that is otherwise
permitted under this Indenture;
(xi) Liens securing Indebtedness under Currency Agreements;
and
(xii) Liens securing Acquired Indebtedness (and any
Indebtedness which Refinances such Acquired Indebtedness)
incurred in accordance with Section 4.03; PROVIDED that (A) such
Liens secured the Acquired Indebtedness at the time of and prior
to the incurrence of such Acquired Indebtedness by the Guarantor
and were not granted in connection with, or in anticipation of
the incurrence of such Acquired Indebtedness by the Guarantor and
(B) such Liens do not extend to or cover any property or assets
of the Guarantor other than the property or assets that secured
the Acquired Indebtedness prior to the time such Indebtedness
became Acquired Indebtedness of the Guarantor.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or
a governmental agency or political subdivision thereof.
"Physical Securities" has the meaning provided in Section 2.01.
"Preferred Stock" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"Private Placement Legend" means the legend initially set forth
on the Securities in the form set forth on EXHIBIT A.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation
in accordance with Article 11 of Regulation S-X under the Securities Act as
interpreted by the Company's Board of Directors in consultation with its
independent certified public accountants.
"Public Equity Offering" has the meaning provided in Paragraph 6
of the Securities.
"Purchase Agreement" means (i) in connection with the issuance of
Securities on the Issue Date, the purchase agreement dated as of May 8,
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1998 by and among the Company, the Guarantor and the Initial Purchasers and
(ii) any other purchase agreements by and among the Company, the Guarantor
and the purchasers of Securities issued under this Indenture thereafter.
"Purchase Money Indebtedness" means Indebtedness of the Guarantor
or any Restricted Subsidiary incurred for the purpose of financing all or
any part of the purchase price or the cost of construction or improvement
of any property, provided that the aggregate principal amount of such
Indebtedness does not exceed the lesser of the fair market value of such
property or such purchase price or cost.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Record Date" means the Record Dates specified in the Securities;
PROVIDED that if any such date is not a Business Day, the Record Date shall
be the first day immediately preceding such specified day that is a
Business Day.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this
Indenture and the Securities.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price fixed for such redemption, payable in immediately
available funds, pursuant to this Indenture and the Securities.
"Reference Date" has the meaning provided in Section 4.04.
"Refinance" means in respect of any security or
Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem,
defease or retire, or to issue a security or Indebtedness in exchange or
replacement for, such security or Indebtedness in whole or in part.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Guarantor
or any Restricted Subsidiary of Indebtedness incurred in accordance with
Section 4.03 (other than pursuant to clause (ii), (iii), (iv), (v), (vi),
(vii), (viii), (x) or (xi) of the definition of Permitted Indebtedness), in
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each case that does not (1) result in an increase in the aggregated
principal amount of any of the Indebtedness of such Person as of the date
of such proposed Refinancing (plus the amount of any premium required to be
paid under the terms of the instrument governing such Indebtedness and plus
the amount of reasonable expenses incurred in connection with such
Refinancing) or (2) create Indebtedness with (A) a Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced or (B) a final maturity earlier than the
final maturity of the Indebtedness being Refinanced; PROVIDEDd that if such
Indebtedness being Refinanced is Indebtedness of the Issuer and/or the
Guarantor, then such Refinancing Indebtedness shall be Indebtedness solely
of the Issuer and/or the Guarantor.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means (i) the Registration Rights
Agreement dated as of the Issue Date among the Company, the Guarantor and
the Initial Purchasers and (ii) any registration rights agreement by and
among the Company, Guarantor and purchasers of Securities issued after the
Issue Date.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer in the Corporate Trust Administration of the Trustee
including any vice president, assistant vice president or any other officer
of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers,
respectively, and also means with respect to any other matter, any other
officer to whom any corporate trust matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Restricted Payment" has the meaning provided in Section 4.04.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
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 Security is a Restricted Security.
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"Restricted Subsidiary" means any Subsidiary of the Guarantor
that has not been designated by the Board of Directors of the Guarantor, by
a Board Resolution delivered to the Trustee, as an Unrestricted Subsidiary
pursuant to and in compliance with Section 4.23. Any such Designation may
be revoked by a Board Resolution of the Guarantor delivered to the Trustee,
subject to the provisions of such covenant.
"Revocation" has the meaning provided in Section 4.23.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party,
providing for the leasing to the Guarantor or a Restricted Subsidiary of
any property, whether owned by the Guarantor or any Restricted Subsidiary
at the Issue Date or later acquired, which has been or is to be sold or
transferred by the Guarantor or such Restricted Subsidiary to such Person
or to any other Person from whom funds have been or are to be advanced by
such Person on the security of such property.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Securities and the Series B
Securities 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.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Series A Securities" means the 8 5/8% Senior Notes due 2008,
Series A, of the Company issued pursuant to this Indenture.
"Series B Securities" means the 8 5/8% Senior Notes due 2008,
Series B, of the Company to be issued pursuant to this Indenture, including
in exchange for the Series A Securities pursuant to the registered exchange
offer as contemplated by the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that
satisfies the criteria for a "significant subsidiary" set forth in Rule
1.02(w) of Regulation S-X under the Exchange Act.
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"Subsidiary," with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a
majority of the votes entitled to be cast in the election of directors
under ordinary circumstances shall at the time be owned, directly or
indirectly, by such Person or (ii) any other Person of which at least a
majority of the voting interest under ordinary circumstances is at the
time, directly or indirectly, owned by such Person.
"Surviving Entity" has the meaning provided in Section 5.01.
"Tax" means any tax, duty, assessment or governmental charge of
whatever nature (or interest on, or penalties or other additions to, any of
the foregoing) imposed or levied by or on behalf of, or within, Canada or
any Province of Canada or any political subdivision or taxing authority of
Canada or any Province of Canada.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Secs. 77aaa-
77bbbb), as amended, as in effect on the date of the execution of this
Indenture until such time as this Indenture is qualified under the TIA, and
thereafter as in effect on the date on which this Indenture is qualified
under the TIA, except as otherwise provided in Section 9.03.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture
and thereafter means such successor.
"Unrestricted Subsidiary" means any Subsidiary of the Guarantor
designated as such pursuant to and in compliance with Section 4.23. Any
such designation may be revoked by a Board Resolution of the Guarantor
delivered to the Trustee, subject to the provisions of such covenant.
"U.S. Government Obligations" shall have the meaning provided in
Section 8.01(d)(1).
"U.S. Legal Tender" means such coin or currency in immediately
available funds of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts.
"U.S. Physical Securities" shall have the meaning set forth in
Section 2.01.
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"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the
then outstanding aggregate principal amount of such Indebtedness into
(b) the sum of the total of the products obtained by multiplying (i) the
amount of each then remaining installment, sinking fund, serial maturity or
other required payment of principal, including payment at final maturity,
in respect thereof, by (ii) the number of years (calculated to the nearest
one-twelfth) which will elapse between such date and the making of such
payment.
SECTION 1.02. INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this
Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the
Guarantor and any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
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(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORM AND DATING.
The Series A Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of EXHIBIT A
annexed hereto, which is hereby incorporated in and expressly made a part
of this Indenture. The Series B Securities and the Trustee's certificate
of authentication thereof shall be substantially in the form of EXHIBIT B
annexed hereto, which is hereby incorporated in and expressly made a part
of this Indenture. The Securities may have notations, legends or endorse-
ments (including notations relating to the Guarantee, stock exchange rule
or usage). The Company and the Trustee shall approve the form of the Secu-
rities and any notation, legend or endorsement (including notations relat-
ing to the Guarantee) on them. Each Security shall be dated the date of
its issuance and shall be authenticated by the Trustee.
Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent Global Securities in
registered form, substantially in the form set forth in EXHIBIT A,
deposited with the Trustee, as custodian for the Depository, and shall bear
the legend set forth on EXHIBIT C. The aggregate principal amount of any
Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depository, as hereinafter provided.
Securities offered and sold in offshore transactions in reliance
on Regulation S shall be issued in the form of certificated Securities in
registered form in substantially the form set forth in EXHIBIT A (the
"Offshore Physical Securities"). Securities offered and sold in reliance
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on any other exemption from registration under the Securities Act other
than as described in the preceding paragraph shall be issued, and
Securities offered and sold in reliance on Rule 144A may be issued, in the
form of certificated Securities in registered form in substantially the
form set forth in EXHIBIT A (the "U.S. Physical Securities"). The Offshore
Physical Securities and the U.S. Physical Securities are sometimes collec-
tively herein referred to as the "Physical Securities."
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary
(each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to, the Securities for the Compa-
ny by manual or facsimile signature. The Company's seal shall also be
reproduced on the Securities.
If an Officer or Assistant Secretary whose signature is on a
Security was an Officer or Assistant Secretary at the time of such
execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless. The
Guarantor shall execute the Guarantee in the manner set forth in Section
10.04.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
The Trustee shall authenticate Securities upon a written order of
the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of Securities to be authenticated, the
series of Securities and the date on which the Securities are to be
authenticated. The aggregate principal amount of Securities outstanding at
any time may not exceed $225,000,000, except as provided in Section 2.07.
Upon receipt of a written order of the Company in the form of an Officers'
Certificate, the Trustee shall authenticate Securities in substitution for
Securities originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise
provided in the appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this
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Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal
with the Company and Affiliates of the Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple there-of.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Securities may be presented or surrendered for payment ("Paying Agent") and
(c) notices and demands in respect of the Securities and this Indenture may
be served. The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company, upon written notice to the
Trustee, may have one or more co-Registrars and one or more additional
Paying Agents reasonably acceptable to the Trustee. The term "Paying
Agent" includes any additional Paying Agent. The Company initially
appoints the Trustee as Registrar and Paying Agent until such time as the
Trustee has resigned or a successor has been appointed. Neither the
Company nor any Affiliate of the Company may act as Paying Agent except as
otherwise expressly provided in the form of the Security.
SECTION 2.04. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for
the benefit of Holders or the Trustee all assets held by the Paying Agent
for the payment of principal of, premium if any, or interest on, the
Securities, and shall notify the Trustee in writing of any Default by the
Company in making any such payment. The Company at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account
for any assets disbursed and the Trustee may at any time, but shall be
under no obligation to, during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute
all assets held by it to the Trustee and to account for any assets distrib-
uted. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent shall have
no further liability for such assets.
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SECTION 2.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee before each Record Date and at such other times as the
Trustee may request in writing a list as of such date and in such form as
the Trustee may reasonably require of the names and addresses of Holders,
which list may be conclusively relied upon by the Trustee.
SECTION 2.06. TRANSFER AND EXCHANGE.
Subject to the provisions of Sections 2.15 and 2.16, when
Securities are presented to the Registrar or a co-Registrar with a request
to register the transfer of such Securities or to exchange such Securities
for an equal principal amount of Securities of other authorized
denominations of the same series, the Registrar or co-Registrar shall
register the transfer or make the exchange as requested if its requirements
for such transaction are met; PROVIDED, HOWEVER, that the Securities
surrendered for transfer or exchange shall be duly endorsed or accompanied
by a written instrument of transfer in form satisfactory to the Company and
the Registrar or co-Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing. To permit registrations of transfers
and exchanges, the Company shall execute the Securities and the Guarantor
shall execute the Guarantee and the Trustee shall authenticate Securities
at the Registrar's or co-Registrar's written request. No service charge
shall be made for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any
such transfer taxes or other governmental charge payable upon exchanges or
transfers pursuant to Section 2.02, 2.10, 3.06, 4.12, 4.24 or 9.05). The
Registrar or co-Registrar shall not be required to register the transfer of
or exchange of any Security (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Securities
and ending at the close of business on the day of such mailing and (ii)
selected for redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of any Security being redeemed in part.
Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interests in such
Global Security may be effected only through a book-entry system maintained
by the Depository (or its agent), and that ownership of a beneficial
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interest in a Global Security shall be required to be reflected in a book-
entry system.
SECTION 2.07. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall
authenticate upon written notice from the Company a replacement Security if
the Trustee's requirements are met. If required by the Trustee or the
Company, such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of both the Company and the Trustee, to protect
the Company, the Trustee and any Agent from any loss which any of them may
suffer if a Security is replaced. The Company and the Trustee may charge
such Holder for their respective reasonable out-of-pocket expenses in
replacing a Security, including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except those cancelled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. Subject to Section 2.09, a Security does not cease to be
outstanding because the Company or any of its Affiliates holds the
Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser. A mutilated Security
ceases to be outstanding upon surrender of such Security and replacement
thereof pursuant to Section 2.07.
If on a Redemption Date or the Final Maturity Date the Paying
Agent holds U.S. Legal Tender or U.S. Government Obligations sufficient to
pay all of the principal and interest due on the Securities payable on that
date, then on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue.
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SECTION 2.09. TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company, the Guarantor or any of their respective
Affiliates shall be disregarded, except that, for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that a Responsible Officer of
the Trustee actually knows are so owned shall be disregarded.
The Trustee may require an Officers' Certificate listing
Securities owned by the Company, the Guarantor or any of their respective
Affiliates.
SECTION 2.10. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities upon
receipt of a written order of the Company in the form of an Officers'
Certificate. The Officers' Certificate shall specify the amount of
temporary Securities to be authenticated and the date on which the
temporary Securities are to be authenticated. Temporary Securities shall
be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate upon receipt of a written order of the Company pursuant to
Section 2.02 definitive Securities in exchange for temporary Securities.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or
payment. The Trustee, or at the direction of the Trustee, the Registrar or
the Paying Agent, and no one else, shall cancel and, at the written
direction of the Company, shall dispose (subject to the record retention
requirements of the Exchange Act) of all Securities surrendered for
transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Company may not issue new Securities to replace Securities that it has paid
or delivered to the Trustee for cancellation. If the Company or the
Guarantor shall acquire any of the Securities, such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented by
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such Securities unless and until the same are surrendered to the Trustee
for cancellation pursuant to this Section 2.11.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the
Securities, it shall pay the defaulted amounts, plus (to the extent
permitted by law) any interest payable on defaulted amounts pursuant to
Section 4.01 hereof, to the persons who are Holders on a subsequent special
record date. The Company shall fix the special record date and payment
date in a manner satisfactory to the Trustee and provide the Trustee at
least 20 days notice of the proposed amount of defaulted interest to be
paid and the special payment date. At least 15 days before the special
record date, the Company shall mail or cause to be mailed to each Holder at
his address as it appears on the Securities register maintained by the
Registrar a notice that states the special record date, the payment date
(which shall be not less than five nor more than ten days after the special
record date), and the amount to be paid. In lieu of the foregoing
procedures, the Company may pay defaulted interest in any other lawful
manner satisfactory to the Trustee.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Securities will use a "CUSIP" number,
and if so, the Trustee shall use the CUSIP number in notices of redemption
or exchange as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Securities, and that
reliance may be placed only on the other identification numbers printed on
the Securities. The Company shall promptly notify in writing the Trustee
of any such CUSIP numbers used by the Company in connection with the
Securities and any changes in such CUSIP number.
SECTION 2.14. DEPOSIT OF MONEYS.
Prior to 10:00 a.m. New York City time on each Interest Payment
Date and the Final Maturity Date, the Company shall deliver by wire
transfer to the Paying Agent in immediately available funds money
sufficient to make cash payments due on such Interest Payment Date or the
Final Maturity Date, as the case may be, in a timely manner which permits
the Paying Agent to remit payment to the Holders on such Interest Payment
Date or the Final Maturity Date, as the case may be.
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SECTION 2.15. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) The Global Securities initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, (ii) be
delivered to the Trustee as custodian for such Depository and (iii) bear
legends as set forth in EXHIBIT C.
Members of, or participants in, the Depository ("Participants")
shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Security, and the Depository may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as
the absolute owner of the Global Security for all purposes whatsoever.
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
Depository or impair, as between the Depository and Participants, the oper-
ation of customary practices governing the exercise of the rights of a
Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers
in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global
Securities may be transferred or exchanged for Physical Securities in
accordance with the rules and procedures of the Depository and the
provisions of Section 2.16. In addition, Physical Securities shall be
transferred to all beneficial owners in exchange for their beneficial
interests in Global Securities if (i) the Depository notifies the Company
that it is unwilling or unable to continue as Depository for any Global
Security and a successor depositary is not appointed by the Company within
90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depository to
issue Physical Securities.
(c) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b) of this Section
2.15, the Global Securities shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute (and the Guarantor
shall execute the Guarantee) and the Trustee shall upon written
instructions from the Company authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest
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in the Global Securities, an equal aggregate principal amount of Physical
Securities of authorized denominations.
(d) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to
paragraph (b) or (c) of this Section 2.15 shall, except as otherwise
provided by Section 2.16, bear the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and
otherwise authorize any Person, including Participants and Persons that may
hold interests through Participants, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.16. REGISTRATION OF TRANSFERS AND EXCHANGES.
(a) TRANSFER AND EXCHANGE OF PHYSICAL SECURITIES. When Physical
Securities are presented to the Registrar with a request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal number
of Physical Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as
requested if the requirements under this Indenture as set forth
in this Section 2.16 for such transactions are met; PROVIDED,
HOWEVER, that the Physical Securities presented or surrendered
for registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(II) in the case of Physical Securities the offer and sale of
which have not been registered under the Securities Act, such
Physical Securities shall be accompanied by an Opinion of Counsel
addressed to the Registrar to the effect that such transfer and
exchange is in compliance with applicable securities law and, in
the sole discretion of the Company, by the following additional
information and documents, as applicable:
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(A) if such Physical Security is being delivered to the
Registrar by a holder for registration in the name of such
holder, without transfer, a certification from such holder to
that effect (in substantially the form of EXHIBIT D hereto); or
(B) if such Physical Security is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A under
the Securities Act, a certification to that effect (in
substantially the form of EXHIBIT D hereto); or
(C) if such Physical Security is being transferred to an
Institutional Accredited Investor, delivery of a certification to
that effect (in substantially the form of EXHIBIT D hereto) and a
Transferee Certificate for Institutional Accredited Investors in
substantially the form of EXHIBIT E hereto; or
(D) if such Physical Security is being transferred in
reliance on Regulation S, delivery of a certification to that
effect (in substantially the form of EXHIBIT D hereto) and a
Transferee Certificate for Regulation S Transfers in
substantially the form of EXHIBIT F hereto and an Opinion of
Counsel reasonably satisfactory to the Company to the effect that
such transfer is in compliance with the Securities Act; or
(E) if such Physical Security is being transferred in
reliance on Rule 144 under the Securities Act, delivery of a
certification to that effect (in substantially the form of
EXHIBIT D hereto) and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such transfer is
in compliance with the Securities Act; or
(F) if such Physical Security is being transferred in
reliance on another exemption from the registration requirements
of the Securities Act, a certification to that effect (in
substantially the form of EXHIBIT D hereto) and an Opinion of
Counsel reasonably satisfactory to the Company to the effect that
such transfer is in compliance with the Securities Act.
(b) RESTRICTIONS ON TRANSFER OF A PHYSICAL SECURITY FOR A
BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Physical Security may not be
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exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the
Registrar of a Physical Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Registrar,
together with:
(A) a certification, in substantially the form of EXHIBIT
D hereto, that such Physical Security is being transferred to a
Qualified Institutional Buyer; and
(B) written instructions directing the Registrar to make,
or to direct the Depository to make, an endorsement on the Global
Security to reflect an increase in the aggregate amount of the
Securities represented by the Global Security, then the Registrar
shall cancel such Physical Security and cause, or direct the
Depository to cause, in accordance with the standing instructions
and procedures existing between the Depository and the Registrar,
the number of Securities represented by the Global Security to be
increased accordingly. If no Global Security is then
outstanding, the Company shall issue and the Trustee shall upon
written instructions from the Company authenticate a new Global
Security in the appropriate amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depository, in accordance with this Indenture
(including the restrictions on transfer set forth herein) and the
procedures of the Depository therefor.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR A
PHYSICAL SECURITY.
(i) Any Person having a beneficial interest in a Global Security
may upon request exchange such beneficial interest for a Physical
Security. Upon receipt by the Registrar of written instructions
or such other form of instructions as is customary for the
Depository from the Depository or its nominee on behalf of any
Person having a beneficial interest in a Global Security and upon
receipt by the Trustee of a written order or such other form of
instructions as is customary for the Depository or the Person
designated by the Depository as having such a beneficial interest
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containing registration instructions and, in the case of any such
transfer or exchange of a beneficial interest in Securities the
offer and sale of which have not been registered under the
Securities Act, the following additional information and
documents:
(A) if such beneficial interest is being transferred to
the Person designated by the Depository as being the beneficial
owner, a certification from such Person to that effect (in
substantially the form of EXHIBIT D hereto); or
(B) if such beneficial interest is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A under
the Securities Act, a certification to that effect (in
substantially the form of EXHIBIT D hereto); or
(C) if such beneficial interest is being transferred to
an Institutional Accredited Investor, delivery of a certification
to that effect (in substantially the form of EXHIBIT D hereto)
and a Certificate for Institutional Accredited Investors in
substantially the form of EXHIBIT E hereto; or
(D) if such beneficial interest is being transferred in
reliance on Regulation S, delivery of a certification to that
effect (in substantially the form of EXHIBIT D hereto) and a
Transferee Certificate for Regulation S Transfers in
substantially the form of EXHIBIT F hereto and an Opinion of
Counsel reasonably satisfactory to the Company to the effect that
such transfer is in compliance with the Securities Act; or
(E) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act, delivery of a
certification to that effect (in substantially the form of
EXHIBIT D hereto) and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such transfer is
in compliance with the Securities Act; or
(F) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements
of the Securities Act, a certification to that effect (in
substantially the form of EXHIBIT D hereto) and an Opinion of
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Counsel reasonably satisfactory to the Company to the effect
that such transfer is in compliance with the Securities Act,
then the Registrar will cause, in accordance with the standing
instructions and procedures existing between the Depository and
the Registrar, the aggregate amount of the Global Security to be
reduced and, following such reduction, the Company will execute
and, upon receipt of an authentication order in the form of an
Officers' Certificate, the Trustee will authenticate and deliver
to the transferee a Physical Security.
(ii) Securities issued in exchange for a beneficial interest in
a Global Security pursuant to this Section 2.16(d) shall be
registered in such names and in such authorized denominations as
the Depository, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Registrar
in writing. The Registrar shall deliver such Physical Securities
to the Persons in whose names such Physical Securities are so
registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
Notwithstanding any other provisions of this Indenture, a Global Security
may not be transferred as a whole except by the Depository to a nominee of
the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
(f) PRIVATE PLACEMENT LENGEND. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing
the Private Placement Legend, the Registrar shall deliver only Securities
that bear the Private Placement Legend unless, and the Trustee is hereby
authorized to deliver Securities without the Private Placement Legend if,
(i) there is delivered to the Trustee an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (ii) such
Security has been sold pursuant to an effective registration statement
under the Securities Act.
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(g) GENERAL. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and
in the Private Placement Legend and agrees that it will transfer such
Security only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this
Section 2.16. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the
Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to Paragraph
5 or Paragraph 6 of the Securities, it shall notify the Trustee in writing
of the Redemption Date, the Redemption Price and the principal amount of
Securities to be redeemed. The Company shall give notice of redemption to
Trustee at least 45 days but not more than 60 days before the Redemption
Date (unless a shorter notice shall be agreed to by the Trustee in
writing), together with an Officers' Certificate stating that such
redemption will comply with the conditions contained herein.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If fewer than all of the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed, on a pro rata basis, by
lot or by such method as the Trustee shall deem fair and appropriate or if
the Securities are then listed on a national securities exchange in
accordance with the rules of such exchange; PROVIDED, HOWEVER, that if the
Securities are redeemed pursuant to Paragraph 6 of the Securities, the
Securities shall be redeemed solely on a pro rata basis or on as nearly a
pro rata basis as is practicable (subject to the procedures of the
Depository) unless the securities exchange, if any, on which the Securities
are listed requires a different method or such method is prohibited by law.
If the Securities are listed on any national securities exchange, the
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Company shall notify the Trustee in writing of the requirements of such
exchange in respect of any redemption. The Trustee shall make the
selection from the Securities outstanding and not previously called for
redemption and shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security
selected for partial redemption, the principal amount thereof to be
redeemed. The Trustee may select for redemption portions (equal to $1,000
or any integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply
to Securities called for redemption also apply to portions of Securities
called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed a notice of redemption
by first-class mail, postage prepaid, to each Holder whose Securities are
to be redeemed. At the Company's written request, the Trustee shall give
the notice of redemption in the Company's name and at the Company's
expense. Each notice for redemption shall identify the Securities to be
redeemed 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 and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price plus accrued interest,
if any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the Holders
of such Securities is to receive payment of the Redemption Price and
accrued interest, if any, to the Redemption Date upon surrender to the
Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed portion
thereof will be issued;
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(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be outstanding
after such partial redemption; and
(8) the Paragraph of the Securities pursuant to which the
Securities are to be redeemed.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price plus accrued interest, if any.
Upon surrender to the Paying Agent, such Securities called for redemption
shall be paid at the Redemption Price (which shall include accrued interest
thereon to the Redemption Date), but installments of interest, the maturity
of which is on or prior to the Redemption Date, shall be payable to Holders
of record at the close of business on the relevant Record Dates.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
Prior to 11:00 a.m. New York City time on the Redemption Date,
the Company shall deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the Redemption Price plus accrued interest, if any, of
all Securities to be redeemed on that date.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price plus accrued
interest, if any, interest on the Securities to be redeemed will cease to
accrue on and after the applicable Redemption Date, whether or not such
Securities are presented for payment.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Security or Securities
equal in principal amount to the unredeemed portion of the Security
surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities in the manner provided in the Securities. An installment of
principal of or interest on the Securities shall be considered paid on the
date it is due if the Trustee or Paying Agent holds on that date U.S. Legal
Tender designated for and sufficient to pay the installment.
The Company shall pay, to the extent such payments are lawful,
interest on overdue principal and it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods)
from time to time on demand at the rate borne by the Securities plus 2% per
annum. Interest will be computed on the basis of a 360-day year comprised
of twelve 30-day months.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City
of New York, the office or agency required under Section 2.03. The Company
shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02. The Company hereby initially
designates the office of the Trustee at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ as its office or agency in the Borough of
Manhattan, The City of New York.
SECTION 4.03. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS.
The Guarantor will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or
otherwise become responsible for payment of (collectively, "INCUR") any
Indebtedness (other than Permitted Indebtedness); PROVIDED, HOWEVER, that
if no Default or Event of Default shall have occurred and be continuing at
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the time of or as a consequence of the incurrence of any such Indebtedness,
the Guarantor or any Restricted Subsidiary may incur Indebtedness
(including, without limitation, Acquired Indebtedness) if on the date of
the incurrence of such Indebtedness, after giving effect to the incurrence
thereof, the Consolidated Fixed Charge Coverage Ratio of the Guarantor is
greater than (a) 2.0 to 1.0 if such incurrence occurs on or prior to May
15, 2000 or (b) 2.25 to 1.0 if such incurrence occurs after May 15, 2000.
No Indebtedness incurred pursuant to the Consolidated Fixed
Charge Coverage Ratio test of the preceding paragraph shall reduce the
amount of Indebtedness which may be incurred pursuant to any clause of the
definition of Permitted Indebtedness (including without limitation,
Indebtedness pursuant to clause (ii) of the definition of Permitted
Indebtedness).
The Guarantor shall not incur any Indebtedness which is
subordinated in right of payment to any other Indebtedness of the Guarantor
unless such Indebtedness is subordinated in right of payment to the
Guarantee at least to the same extent as such Indebtedness is subordinated
to such other Indebtedness.
Indebtedness of a Person existing at the time such Person becomes
a Restricted Subsidiary or which is secured by a Lien on an asset acquired
by the Company or a Restricted Subsidiary (whether or not such Indebtedness
is assumed by the acquiring Person) shall be deemed incurred at the time
the Person becomes a Restricted Subsidiary or at the time of the asset
acquisition, as the case may be.
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS.
The Guarantor will not, and will not cause or permit any of the
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions
payable in Qualified Capital Stock of the Guarantor) on or in respect of
shares of the Guarantor's Capital Stock to holders of such Capital Stock,
(b) purchase, redeem or otherwise acquire or retire for value any Capital
Stock of the Guarantor or any warrants, rights or options to purchase or
acquire shares of any class of such Capital Stock or (c) make any
Investment (other than Permitted Investments) (each of the foregoing
actions set forth in clauses (a), (b) and (c) being referred to as a
"Restricted Payment"), if at the time of such Restricted Payment or
immediately after giving effect thereto, (i) a Default or an Event of
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Default shall have occurred and be continuing or (ii) the Guarantor is not
able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.03 or (iii) the
aggregate amount of Restricted Payments (including such proposed Restricted
Payment) made subsequent to the Issue Date (the amount expended for such
purpose, if other than in cash, being the fair market value of such
property as determined reasonably and in good faith by the Board of
Directors of the Guarantor) shall exceed the sum of: (w) 50% of the
cumulative Consolidated Net Income (or if cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss) of the Guarantor earned
subsequent to the Issue Date and on or prior to the date the Restricted
Payment occurs (the "Reference Date") (treating such period as a single
accounting period); PLUS (x) 100% of the fair market value of the aggregate
net proceeds received by the Guarantor from any Person (other than a
Subsidiary of the Guarantor) from the issuance and sale subsequent to the
Issue Date and on or prior to the Reference Date of Qualified Capital Stock
of the Guarantor; PLUS (y)without duplication of any amounts included in
clause (iii)(x) above, 100% of the fair market value of the aggregate net
proceeds of any contribution to the common equity capital of the Guarantor
received by the Guarantor from a holder of the Guarantor's Capital Stock
(excluding, in the case of clauses (iii)(x) and (y), any net proceeds from
a Public Equity Offering to the extent used to redeem the Securities); PLUS
(z) an amount equal to the lesser of (A) the sum of the fair market value
of the Capital Stock of an Unrestricted Subsidiary owned by the Guarantor
and the Restricted Subsidiaries and the aggregate amount of all
Indebtedness of such Unrestricted Subsidiary owed to the Guarantor and the
Restricted Subsidiaries on the date of Revocation of such Unrestricted
Subsidiary as an Unrestricted Subsidiary in accordance with Section 4.23 or
(B) the Designation Amount with respect to such Unrestricted Subsidiary on
the date of the Designation of such Subsidiary as an Unrestricted
Subsidiary in accordance with Section 4.23.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (1) the payment of any
dividend within 60 days after the date of declaration of such dividend if
the dividend would have been permitted on the date of declaration; (2) if
no Default or Event of Default shall have occurred and be continuing, the
acquisition of any shares of Capital Stock of the Guarantor, either (i)
solely in exchange for shares of Qualified Capital Stock of the Guarantor
or of an Assuming Party in a Domestication Event or (ii) through the
application of net proceeds of a substantially concurrent sale for cash
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(other than to a Subsidiary of the Guarantor) of shares of Qualified
Capital Stock of the Guarantor; (3) so long as no Default or Event of
Default shall have occurred and be continuing, repurchases of Capital Stock
of the Guarantor from officers, directors, employees or consultants
pursuant to equity ownership or compensation plans not to exceed $1.0
million in any year; and (4) so long as no Default or Event of Default
shall have occurred and be continuing, other Restricted Payments in an
aggregate amount not to exceed $10.0 million. In determining the aggregate
amount of Restricted Payments made subsequent to the Issue Date in
accordance with clause (iii) of the immediately preceding paragraph,
amounts expended pursuant to clauses (1) through (4) shall be included in
such calculation.
SECTION 4.05. CORPORATE EXISTENCE.
Except as otherwise permitted by Article Five, the Guarantor
shall do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and the corporate,
partnership or other existence of each of the Restricted Subsidiaries in
accordance with the respective organizational documents of each Restricted
Subsidiary and the rights (charter and statutory) and material franchises
of the Guarantor and each of its Restricted Subsidiaries; PROVIDED,
HOWEVER, that the Guarantor shall not be required to preserve any such
right or franchise, or the corporate existence of any Restricted
Subsidiary, if the Board of Directors of the Guarantor shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Guarantor and its Restricted Subsidiaries, taken as a
whole, and that the loss thereof is not, and will not be, adverse in any
material respect to the Holders.
SECTION 4.06. PAYMENT OF TAXES AND OTHER CLAIMS.
The Guarantor shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material
taxes, assessments and governmental charges levied or imposed upon it or
any of the Restricted Subsidiaries or upon the income, profits or property
of it or any of the Restricted Subsidiaries and (ii) all lawful claims for
labor, materials and supplies which, in each case, if unpaid, might by law
become a material liability or Lien upon the property of it or any of the
Restricted Subsidiaries; PROVIDED, HOWEVER, that the Guarantor 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
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being contested in good faith by appropriate proceedings and for which
appropriate provision has been made.
SECTION 4.07. MAINTENANCE OF PROPERTIES AND INSURANCE.
(1) The Guarantor shall cause all material properties owned by
or leased by it or any of the Restricted Subsidiaries used in the conduct
of its business or the business of any of the Restricted Subsidiaries to be
improved or maintained and kept in normal condition, repair and working
order (reasonable wear and tear excepted) and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in its judgment
may be necessary, so that the business carried on in connection therewith
may be properly and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section 4.07 shall prevent the Guarantor or
any of the Restricted Subsidiaries from discontinuing the use, operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors of
the Guarantor or of the Board of Directors of any Restricted Subsidiary, or
of an officer (or other agent employed by the Guarantor or of any of the
Restricted Subsidiaries) of the Guarantor or any of its Restricted
Subsidiaries having managerial responsibility for any such property,
desirable in the conduct of the business of the Guarantor or any Restricted
Subsidiary, and if such discontinuance or disposal is not adverse in any
material respect to the Holders.
(2) The Guarantor shall maintain, and shall cause the
Restricted Subsidiaries to maintain, insurance with responsible carriers
against such risks and in such amounts, and with such deductibles,
retentions, self-insured amounts and co-insurance provisions, as are
customarily carried by similar businesses of similar size, including
property and casualty loss, workers' compensation and interruption of
business insurance.
SECTION 4.08. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(1) The Company shall deliver to the Trustee, within 100 days
after the close of each fiscal year an Officers' Certificate stating that a
review of the activities of the Company and the Guarantor has been made
under the supervision of the signing officers with a view to determining
whether they have kept, observed, performed and fulfilled their respective
obligations under this Indenture and further stating, as to each such
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Officer signing such certificate, that to the best of his knowledge the
Company and the Guarantor during such preceding fiscal year have kept,
observed, performed and fulfilled each and every such covenant and no
Default or Event of Default occurred during such year and at the date of
such certificate no Default or Event of Default has occurred and is
continuing or, if such signers do know of such Default or Event of Default,
the certificate shall describe its status with particularity. The
Officers' Certificate shall also notify the Trustee should the Guarantor
elect to change the manner in which it fixes its fiscal year end.
(2) The annual financial statements delivered pursuant to
Section 4.10(2) shall be accompanied by a written report of the Guarantor's
independent accountants (who shall be a firm of established reputation)
that in conducting their audit of such financial statements nothing has
come to their attention that would lead them to believe that the Company or
the Guarantor has violated any provisions of Article Four, Five or Six of
this Indenture insofar as they relate to accounting matters or, if any such
violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of
any such violation.
(3) The Company shall deliver to the Trustee, within ten days
of becoming aware of any Default or Event of Default in the performance of
any covenant, agreement or condition contained in this Indenture, an
Officers' Certificate specifying the Default or Event of Default and
describing its status with particularity.
SECTION 4.09. COMPLIANCE WITH LAWS.
The Guarantor shall comply, and shall cause each of the
Restricted Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions 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 Guarantor and the Restricted Subsidiaries taken as a whole.
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SECTION 4.10. SEC REPORTS.
(1) The Guarantor will file with the SEC all information
documents and reports to be filed with the SEC pursuant to Section 13 or
15(d) of the Exchange Act, whether or not the Guarantor is subject to such
filing requirements so long as the SEC will accept such filings. The
Guarantor (at its own expense) will file with the Trustee within 15 days
after it files them with the SEC, copies of the quarterly and annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Guarantor files with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. Upon qualification of this
Indenture under the TIA, the Guarantor and the Company shall also comply
with the provisions of TIA Sec. 314(a).
(2) At the Guarantor's expense, regardless of whether the
Guarantor is required to furnish such reports to its stockholders pursuant
to the Exchange Act, the Guarantor shall cause annual or quarterly reports,
to be delivered to the Trustee and the Holders. The Guarantor will also
make such reports available to prospective purchasers of the Securities,
securities analysts and broker-dealers upon their request.
(3) For so long as any of the Securities remain outstanding
the Guarantor will make available to any prospective purchaser of the
Securities or beneficial owner of the Securities in connection with any
sale thereof the information required by Rule 144A(d)(4) under the
Securities Act during any period when the Company is not subject to Section
13 or 15(d) under the Exchange Act.
SECTION 4.11. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law or any usury law or other law that would prohibit or forgive the
Company from paying all or any portion of the principal of and/or interest
on the Securities 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 it may lawfully do
so) the Company hereby expressly waives 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.
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SECTION 4.12. LIMITATION ON ASSET SALES.
The Guarantor will not, and will not permit any of the Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Guarantor or the
applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair
market value of the assets sold or otherwise disposed of (as determined in
good faith by the Guarantor's Board of Directors), (ii) at least 75% of the
consideration received by the Guarantor or the Restricted Subsidiary, as
the case may be, from such Asset Sale shall be in the form of cash or Cash
Equivalents and is received at the time of such disposition (with the
principal amount or accreted value, as the case may be, of Indebtedness of
the Guarantor and the Restricted Subsidiaries assumed by the transferee in
connection with such Asset Sale treated as cash for purposes of this clause
(ii)); and (iii) upon the consummation of an Asset Sale, the Guarantor
shall apply, or cause such Restricted Subsidiary to apply, the Net Cash
Proceeds relating to such Asset Sale within 360 days of receipt thereof
either (A) to prepay any Indebtedness of a Restricted Subsidiary or Indebt-
edness of the Guarantor which is not subordinated in right of payment to
any other Indebtedness of the Guarantor, (B) to purchase or make an invest-
ment in properties and assets (including inventory) that will be used in
the business of the Guarantor or the Restricted Subsidiaries as existing on
the Issue Date or in businesses reasonably related thereto, or (C) a
combination of prepayment and investment permitted by the foregoing clauses
(iii)(A) and (iii)(B). On the 361st day after an Asset Sale or such
earlier date, if any, as the Board of Directors of the Guarantor or of such
Restricted Subsidiary determines not to apply the Net Cash Proceeds
relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and
(iii)(C) of the next preceding sentence (each, a "Net Proceeds Offer
Trigger Date"), such aggregate amount of Net Cash Proceeds which have not
been applied on or before such Net Proceeds Offer Trigger Date as permitted
in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence
(each a "Net Proceeds Offer Amount") shall be applied by the Issuer to make
an offer to purchase (the "Net Proceeds Offer") on a date (the "Net
Proceeds Offer Payment Date") not less than 30 nor more than 60 days
following the applicable Net Proceeds Offer Trigger Date, from all Holders
who validly accept such offer on a pro rata basis, that principal amount of
Securities equal to the Net Proceeds Offer Amount at a price equal to 100%
of the principal amount of the Securities to be purchased, plus accrued and
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unpaid interest, if any, thereon to the date of purchase; PROVIDED,
HOWEVER, that if at any time any non-cash consideration received by the
Guarantor or any Restricted Subsidiary, as the case may be, in connection
with any Asset Sale is converted into or sold or otherwise disposed of for
cash (other than interest received with respect to any such non-cash
consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall
be applied in accordance with this covenant. The Issuer may defer the Net
Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer
Amount equal to or in excess of $5,000,000 resulting from one or more Asset
Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and
not just the amount in excess of $5,000,000 shall be applied as required
pursuant to this paragraph).
In the event of the transfer of substantially all (but not all)
of the property and assets of the Guarantor and the Restricted Subsidiaries
as an entirety to a Person in a transaction permitted under Article Five,
the successor corporation shall be deemed to have sold the properties and
assets of the Guarantor and the Restricted Subsidiaries not so transferred
for purposes of this covenant, and shall comply with the provisions of this
covenant with respect to such deemed sale as if it were an Asset Sale. In
addition, the fair market value of such properties and assets of the
Guarantor or the Restricted Subsidiaries deemed to be sold shall be deemed
to be Net Cash Proceeds for purposes of this covenant.
Notice of each Net Proceeds Offer pursuant to this Section 4.12
will be mailed or caused to be mailed, by first class mail, by the Company
within 30 days following the Net Proceeds Offer Trigger Date to all Holders
at their last registered addresses, with a copy to the Trustee. The notice
shall contain all instructions and materials necessary to enable such
Holders to tender Securities pursuant to the Net Proceeds Offer and shall
state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to
Section 4.12 and that all Securities tendered in whole or in part in
integral multiples of $1,000 will be accepted for payment; PROVIDED,
HOWEVER, that if the principal amount of Securities validly tendered in a
Net Proceeds Offer exceeds the aggregate amount of the Net Cash Proceeds
Offer Amount, the Company shall select the Securities to be purchased on a
pro rata basis (based on amounts tendered);
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(2) the purchase price (including the amount of accrued
interest, if any) and the Net Proceeds Offer Payment Date (which shall be
at least 20 Business Days from the date of mailing of notice of such Net
Proceeds Offer, or such longer period as required by law);
(3) that any Security not validly tendered will continue to
accrue interest;
(4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the Net Proceeds
Offer shall cease to accrue interest after the Net Proceeds Offer Payment
Date;
(5) that Holders electing to have a Security purchased
pursuant to a Net Proceeds Offer will be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Security completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the Net Proceeds
Offer Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the Business Day prior to the
Net Proceeds Offer Payment Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security the
Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased; and
(7) that Holders whose Securities are purchased only in part
will be issued new Securities in a principal amount equal to the
unpurchased portion of the Securities surrendered.
On or before the Net Proceeds Offer Payment Date, the Company
shall (i) accept for payment Securities or portions thereof validly
tendered pursuant to the Net Proceeds Offer which are to be purchased in
accordance with item (1) above, (ii) deposit with the Paying Agent in
accordance with Section 2.14 U.S. Legal Tender sufficient to pay the
purchase price plus accrued interest, if any, of all Securities to be
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purchased and (iii) deliver to the Trustee Securities so accepted together
with an Officers' Certificate stating the Securities or portions thereof
being purchased by the Company. The Paying Agent shall promptly mail to
the Holders of Securities so accepted payment in an amount equal to the
purchase price plus accrued interest, if any. For purposes of this Section
4.12, the Trustee shall act as the Paying Agent.
The Company shall and shall cause its Subsidiaries to comply with
all tender offer rules under state and Federal securities laws, including,
but not limited to, Section 14(e) under the Exchange Act and Rule 14e-1
thereunder, to the extent applicable to such Net Proceeds Offer. To the
extent that the provisions of any securities laws or regulations conflict
with the foregoing provisions of this Indenture, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed
to have breached its obligations under the foregoing provisions of this
Indenture by virtue thereof.
SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.
The Guarantor will not, and will not cause or permit any of the
Restricted Subsidiaries to, directly or indirectly, create or otherwise
cause or permit to exist or become effective any encumbrance or restriction
on the ability of any Restricted Subsidiary to (a) pay dividends or make
any other distributions on or in respect of its Capital Stock; (b) make
loans or advances or to pay any Indebtedness or other obligation owed to
the Guarantor or any other Restricted Subsidiary; or (c) transfer any of
its property or assets to the Guarantor or any other Restricted Subsidiary,
except for such encumbrances or restrictions existing under or by reasons
of: (1) applicable law; (2) this Indenture; (3) customary non-assignment
provisions of any contract or any lease governing a leasehold interest of
any Restricted Subsidiary; (4) any instrument governing Acquired
Indebtedness, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person or
the properties or assets of the Person so acquired; (5) agreements existing
on the Issue Date to the extent and in the manner such agreements are in
effect on the Issue Date; (6) any other agreement entered into after the
Issue Date which contains encumbrances and restrictions which are no more
restrictive with respect to any Restricted Subsidiary than those in effect
with respect to such Restricted Subsidiary pursuant to agreements as in
effect on the Issue Date; (7) an agreement governing Refinancing
Indebtedness incurred to Refinance the Indebtedness issued, assumed or
incurred pursuant to an agreement referred to in clause (2), (4) or (5)
above; PROVIDED, HOWEVER, that the provisions relating to such encumbrance
or restriction contained in any such Refinancing Indebtedness are no more
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restrictive than the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clause (2), (4) or (5); and (8)
restrictions applicable only to an Accounts Receivable Subsidiary.
SECTION 4.14. LIMITATION ON PREFERRED STOCK OF RESTRICTED SUBSIDIARIES.
The Guarantor will not permit any of the Restricted Subsidiaries
to issue any Preferred Stock (other than to the Guarantor or to a
Restricted Subsidiary) or permit any Person (other than the Guarantor or a
Restricted Subsidiary) to own any Preferred Stock of any Restricted Subsid-
iary.
SECTION 4.15. LIMITATION ON LIENS.
The Guarantor will not, directly or indirectly, create, incur,
assume or permit or suffer to exist any Liens of any kind against or upon
any property or assets of the Guarantor, whether owned on the Issue Date or
acquired after the Issue Date, or any proceeds therefrom, or assign or
otherwise convey any right to receive income or profits therefrom unless
(i) in the case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Guarantee, the Guarantee
is secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens and (ii) in all other cases, the Guarantee is
equally and ratably secured, except for (A) Liens securing the Guarantee;
(B) Liens in favor of the Issuer or the Guarantor; (C) Liens securing
Refinancing Indebtedness which is incurred to Refinance any Indebtedness
which has been secured by a Lien permitted under this Indenture and which
has been incurred in accordance with the provisions of this Indenture;
PROVIDED, HOWEVER, that such Liens do not extend to or cover any property
or assets of the Guarantor not securing the Indebtedness so Refinanced; and
(D) Permitted Liens.
SECTION 4.16. [INTENTIONALLY OMITTED].
SECTION 4.17. [INTENTIONALLY OMITTED].
SECTION 4.18. LIMITATIONS ON TRANSACTIONS WITH AFFILIATES.
(a) The Guarantor will not, and will not permit any of the
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
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rendering of any service) with, or for the benefit of, any of its
Affiliates (each an "AFFILIATE TRANSACTION"), other than (x) Affiliate
Transactions permitted under paragraph (b) below and (y) Affiliate
Transactions on terms that are no less favorable than those that might
reasonably have been obtained in a comparable transaction at such time on
an arm's-length basis from a Person that is not an Affiliate of the
Guarantor or such Restricted Subsidiary. All Affiliate Transactions (and
each series of related Affiliate Transactions which are similar or part of
a common plan) involving aggregate payments or other property with a fair
market value in excess of $1.0 million shall be approved by the Board of
Directors of the Guarantor or such Restricted Subsidiary, as the case may
be, such approval to be evidenced by a Board Resolution stating that such
Board of Directors has determined that such transaction complies with the
foregoing provisions. If the Guarantor or any Restricted Subsidiary enters
into an Affiliate Transaction (or series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market value of
more than $5.0 million, the Guarantor or such Restricted Subsidiary, as the
case may be, shall, prior to the consummation thereof, obtain a favorable
opinion as to the fairness of such transaction or series of related
transactions to the Guarantor or the relevant Restricted Subsidiary, as the
case may be, from a financial point of view, from an Independent Financial
Advisor and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply
to (i) employment, consulting and compensation arrangements and agreements
of the Guarantor as in effect on the Issue Date; (ii) reasonable fees and
compensation paid to and indemnity provided on behalf of, officers,
directors, employees or consultants of the Guarantor or any Restricted
Subsidiary as determined in good faith by the Guarantor's Board of
Directors or senior management; (iii) transactions exclusively between or
among the Guarantor and any of the Restricted Subsidiaries or exclusively
between or among such Restricted Subsidiaries; (iv) Restricted Payments
permitted by this Indenture; and (v) a Domestication Event.
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SECTION 4.19. [INTENTIONALLY OMITTED].
SECTION 4.20. [INTENTIONALLY OMITTED].
SECTION 4.21. CONDUCT OF BUSINESS.
The Guarantor and the Restricted Subsidiaries will not engage in
any businesses which are not either: (i) the same, similar or reasonably
related to the businesses in which the Guarantor or any of the Restricted
Subsidiaries are engaged on the Issue Date; (ii)Permitted Investments; or
(iii) businesses acquired through an acquisition after the Issue Date which
are not material to the Guarantor and the Restricted Subsidiaries, taken as
a whole.
SECTION 4.22. PAYMENTS FOR CONSENT.
The Guarantor will not, and will not cause or permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder
of any Securities for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture, the
Securities or the Guarantee unless such consideration is offered to be paid
to all Holders of the Securities who so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such
consent, waiver or agreement.
SECTION 4.23. LIMITATION ON DESIGNATIONS OF UNRESTRICTED SUBSIDIARIES.
The Guarantor may designate any Subsidiary of the Guarantor
(other than the Company or a Subsidiary of the Guarantor which owns Capital
Stock of a Restricted Subsidiary) as an "Unrestricted Subsidiary" under
this Indenture (a "DESIGNATION") only if:
(a) no Default shall have occurred and be continuing at the
time of or after giving effect to such Designation; and
(b) the Guarantor would be permitted under this Indenture to
make an Investment at the time of Designation (assuming the
effectiveness of such Designation) in an amount (the "DESIGNATION
AMOUNT") equal to the sum of (i) fair market value of the Capital
Stock of such Subsidiary owned by the Guarantor and the
Restricted Subsidiaries on such date and (ii) the aggregate
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amount of Indebtedness of such Subsidiary owed to the Guarantor
and the Restricted Subsidiaries on such date; PROVIDED that in
connection with a Domestication Event and a Designation by the
Assuming Party of International Comfort Products Corporation (the
"Former Guarantor") as an Unrestricted Subsidiary, in calculating
the amount of the Investment deemed to be made pursuant to this
clause (b), Qualified Capital Stock of the Assuming Party held by
the Former Guarantor shall be excluded from such calculation; and
(c) the Guarantor would be permitted to incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.03 at the time of Designation (assuming the
effectiveness of such Designation); PROVIDED that in connection
with a Domestication Event and a Designation by the Assuming
Party of the Former Guarantor as an Unrestricted Subsidiary, the
Designation need not comply with this clause (c).
In the event of any such Designation, the Guarantor shall be
deemed to have made an Investment constituting a Restricted Payment in the
Designation Amount pursuant to Section 4.04 for all purposes of this
Indenture. The Guarantor shall not, and shall not permit any Restricted
Subsidiary to, at any time (x) provide direct or indirect credit support
for or a guarantee of any Indebtedness of any Unrestricted Subsidiary
(including of any undertaking agreement or instrument evidencing such
Indebtedness), (y) be directly or indirectly liable for any Indebtedness of
any Unrestricted Subsidiary or (z) be directly or indirectly liable for any
Indebtedness which provides that the holder thereof may (upon notice, lapse
of time or both) declare a default thereon or cause the payment thereof to
be accelerated or payable prior to its final scheduled maturity upon the
occurrence of a default with respect to any Indebtedness of any Unrestrict-
ed Subsidiary (including any right to take enforcement action against such
Unrestricted Subsidiary), except, in the case of clause (x) or (y), to the
extent permitted under Section 4.04.
The Guarantor may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary ("REVOCATION"), whereupon such Subsidiary shall
then constitute a Restricted Subsidiary, if
(a) no Default shall have occurred and be continuing at the
time and after giving effect to such Revocation; and
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(b) all Liens and Indebtedness of such Unrestricted
Subsidiaries 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 Board
Resolutions of the Guarantor delivered to the Trustee certifying compliance
with the foregoing provisions.
SECTION 4.24. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company
shall within 30 days of the Change of Control make an offer to purchase (a
"Change of Control Offer"), and shall purchase, on a Business Day not more
than 60 nor less than 30 days following the occurrence of the Change of
Control (the "Change of Control Payment Date"), all of the then outstanding
Securities at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, thereon to the Change of
Control Payment Date. The Change of Control Offer shall remain open for 20
Business Days (or such longer period as may be required by law) and until
the close of business on the Change of Control Payment Date.
(b) Within 30 days following the date upon which the Change of
Control occurred (the "Change of Control Date"), the Company shall mail, or
cause to be mailed, by first class mail, a notice to each Holder, with a
copy to the Trustee, which notice shall govern the terms of the Change of
Control Offer. The notice to the Holders shall contain all instructions
and materials necessary to enable such Holders to tender Securities
pursuant to the Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.24 and that all Securities validly tendered and
not withdrawn will be accepted for payment;
(2) the purchase price (including the amount of accrued
interest) and the Change of Control Payment Date;
(3) that any Security not validly tendered will continue to
accrue interest;
(4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the
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Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to a Change of Control Offer will be required to
surrender the Security, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Security completed, to
the Paying Agent at the address specified in the notice prior to
the close of business on the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the Business Day
prior to the Change of Control Payment Date, a facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Securities the Holder delivered for
purchase and a statement that such Holder is withdrawing his
election to have such Securities purchased;
(7) that Holders whose Securities are purchased only in part
will be issued new Securities in a principal amount equal to the
unpurchased portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such Change
of Control.
On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Securities or portions thereof validly
tendered pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent in accordance with Section 2.14 U.S. Legal Tender sufficient
to pay the purchase price plus accrued interest, if any, of all Securities
so tendered and (iii) deliver to the Trustee Securities so accepted
together with an Officers' Certificate stating the Securities or portions
thereof being purchased by the Company. Upon receipt by the Paying Agent
of the monies specified in clause (ii) above and a copy of the Officers'
Certificate specified in clause (iii) above, the Paying Agent shall
promptly mail to the Holders of Securities so accepted payment in an amount
equal to the purchase price plus accrued interest, if any, and the Trustee
shall promptly authenticate and mail to such Holders new Securities equal
in principal amount to any unpurchased portion of the Securities
surrendered. Any Securities not so accepted shall be promptly mailed by
the Company to the Holder thereof. For purposes of this Section 4.24, the
Trustee shall act as the Paying Agent.
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Any amounts remaining after the purchase of all validly tendered
and not validly withdrawn Securities pursuant to a Change of Control Offer
shall be returned by the Trustee to the Company.
The Company shall and shall cause its Subsidiaries to comply with
all tender offer rules under state and Federal securities laws, including,
but not limited to, Section 14(e) under the Exchange Act and Rule 14e-1
thereunder, to the extent applicable to such offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.24, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under
this Section 4.24 by virtue thereof.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. MERGERS, AMALGAMATION, CONSOLIDATIONS AND SALES OF ASSETS.
(a) The Guarantor will not, in a single transaction or series
of related transactions, consolidate, amalgamate or merge with or into any
Person, or sell, assign, transfer, lease, convey or otherwise dispose of
(or cause or permit any Restricted Subsidiary to sell, assign, transfer,
lease, convey or otherwise dispose of) all or substantially all of the
Guarantor's assets (determined on a consolidated basis for the Guarantor
and the Restricted Subsidiaries) whether as an entirety or substantially as
an entirety to any Person unless: (a) pursuant to a Domestication Event,
or (b) (i) either (1) the Guarantor shall be the surviving or continuing
corporation or (2) the Person (if other than the Guarantor) formed by such
amalgamation, consolidation or into which the Guarantor is merged or the
Person which acquires by sale, assignment, transfer, lease, conveyance or
other disposition the properties and assets of the Guarantor and the
Restricted Subsidiaries substantially as an entirety (the "SURVIVING
ENTITY") (x) shall be a corporation organized and validly existing under
the laws of (l) the United States or any State thereof or the District of
Columbia or (2) Canada or any Province thereof and (y) shall expressly
assume, by supplemental indenture (in form and substance satisfactory to
the Trustee), executed and delivered to the Trustee, all obligations of the
Guarantor under the Guarantee and the performance of every covenant of the
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Guarantor, this Indenture and the Registration Rights Agreement on the part
of the Guarantor to be performed or observed; (ii) immediately after giving
effect to such transaction and the assumption contemplated by clause
(i)(2)(y) above (including giving effect to any Indebtedness and Acquired
Indebtedness incurred or anticipated to be incurred in connection with or
in respect of such transaction), the Guarantor or such Surviving Entity, as
the case may be, shall be able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.03;
(iii) immediately before and immediately after giving effect to such
transaction and the assumption contemplated by clause (i)(2)(y) above
(including, without limitation, giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred and any Lien
granted in connection with or in respect of the transaction), no Default or
Event of Default shall have occurred or be continuing; and (iv) the
Guarantor or the Surviving Entity shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, amalgamation, merger, sale, assignment, transfer, lease,
conveyance or other disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have
been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of
one or more Restricted Subsidiaries, the Capital Stock of which constitutes
all or substantially all of the properties and assets of the Guarantor,
shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Guarantor.
(c) The Issuer will not consolidate with or merge with or into
any Person other than the Guarantor unless: (i) the entity formed by or
surviving any such consolidation or merger (if other than the Issuer) is a
corporation organized and existing under the laws of the United States or
any State thereof or the District of Columbia; (ii) such entity explicitly
assumes by supplemental indenture (in form reasonably satisfactory to the
Trustee), executed and delivered to the Trustee, the due and punctual
payment of the principal of and premium, if any, and interest on the
Securities and the performance of any covenant of the Securities, this
Indenture and the Registration Rights Agreement; (iii) immediately after
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giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing; (iv) immediately after giving effect to
such transaction and the use of any net proceeds therefrom on a pro forma
basis, the Guarantor could satisfy the provisions of clause (ii) of the
first paragraph of this covenant; and (v) the Issuer shall have delivered
to the Trustee an Officers' Certificate and Opinion of Counsel, each
stating that such consolidation or merger and, if a supplemental indenture
is required in connection with such transaction, such supplemental
indenture comply with the applicable provisions of this Indenture and that
all conditions precedent in this Indenture relating to such transaction
have been satisfied.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
In accordance with the foregoing, upon any such amalgamation,
consolidation, combination, merger, conveyance, lease or transfer of all or
substantially all of the assets of the Guarantor in which the Guarantor or
the Issuer, as the case may be, is not the continuing corporation, the
surviving entity formed by such consolidation or into which the Guarantor
or the Issuer, as the case may be, is merged or to which such amalgamation,
consolidation, merger, conveyance, lease or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Guarantor or the Issuer, as the case may be, under this Indenture and the
Guarantee or the Securities, as the case may be, with the same effect as if
such successor had been named as the Guarantor or the Issuer, as the case
may be, herein, and thereafter the predecessor corporation will be relieved
of all further obligations and covenants under this Indenture, the
Guarantee or the Securities, as the case may be, and the Registration
Rights Agreement; PROVIDED that solely for purposes of computing amounts
described in subclause (iii) of Section 4.04, any such Surviving Entity
shall only be deemed to have succeeded to and be substituted for the Guar-
antor with respect to periods subsequent to the effective time of such
merger, consolidation or transfer of assets.
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(1) the Company fails to pay interest on any Security for a
period of 30 days after the same becomes due and payable; or
(2) the Company fails to pay the principal of any Security,
when such principal becomes due and payable, whether at maturity, upon
redemption or otherwise (including the failure to make a payment to
purchase Securities tendered pursuant to a Change of Control Offer or Net
Proceeds Offer); or
(3) the Company or the Guarantor defaults in the observance or
performance of any other covenant or agreement contained in this Indenture,
the Securities or the Guarantee, which default continues for a period of 30
days, after (x) the Company receives written notice specifying the default
and requiring the Company to remedy the same from the Trustee or (y) the
Company and the Trustee receive such a notice from Holders of at least 25%
in principal amount of outstanding Securities (except in the case of a
default with respect to Article Five, which will constitute an Event of
Default with such notice requirement but without such passage of time
requirement); or
(4) the Guarantor or a Restricted Subsidiary defaults under
any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness of the Guarantor
or of any Restricted Subsidiary (or the payment of which is guaranteed by
the Guarantor or any Restricted Subsidiary) whether such Indebtedness now
exists or is created after the Issue Date which default (a) is caused by a
failure to pay principal of such Indebtedness after any applicable grace
period provided in such Indebtedness on the date of such default (a
"principal payment default"), or (b) results in the acceleration of such
Indebtedness prior to its express maturity (and such acceleration is not
rescinded, or such Indebtedness is not repaid, within 30 days) and, in each
case, the principal amount of any such Indebtedness, together with the
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principal amount of any other such Indebtedness under which there has been
a principal payment default or the maturity of which has been so
accelerated (and such acceleration is not rescinded, or such Indebtedness
is not repaid, within 30 days), aggregates $5.0 million; or
(5) the Guarantor or any of its Significant Subsidiaries (A)
admits in writing its inability to pay its debts generally as they become
due, (B) commences a voluntary case or proceeding under any Bankruptcy Law
with respect to itself, (C) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (D) consents to the appointment of a Custodian of it or for
any material portion of its property, (E) consents to or acquiesces in the
institution of a bankruptcy or an insolvency proceeding against it, (F)
makes a general assignment for the benefit of its creditors, or (G) takes
any corporate action to authorize or effect any of the foregoing; or
(6) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Guarantor or any of its
Significant Subsidiaries in an involuntary case or proceeding under any
Bankruptcy Law, which shall (A) approve as properly filed a petition
seeking reorganization, arrangement, adjustment or composition in respect
of the Guarantor or any of its Significant Subsidiaries, (B) appoint a
Custodian of the Guarantor or any of its Significant Subsidiaries or for
substantially all of any of their property or (C) order the winding-up or
liquidation of its affairs; and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(7) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent jurisdiction for the
payment of money in excess of $5.0 million, either individually or in the
aggregate, shall be entered against the Guarantor or any Restricted
Subsidiary of the Guarantor or any of their respective properties and shall
not be discharged, paid or stayed and there shall have been a period of 60
days after the date on which any period for appeal has expired and during
which a stay of enforcement of such judgment, order or decree shall not be
in effect; or
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(8) the Guarantee ceases to be in full force and effect, or
the Guarantee is declared to be null and void and unenforceable or the
Guarantee is found to be invalid or the Guarantor denies its liability
under the Guarantee.
The Trustee shall, within 30 days after the occurrence of any
Default actually known to a Responsible Officer of the Trustee, give to the
holders of Securities notice of such Default; PROVIDED that, except in the
case of a Default in the payment of principal of or interest on any of the
Securities, the Trustee shall be protected in withholding such notice if
and so long as a Responsible Officer of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders of Securities. The Issuer shall provide an Officers' Certificate
to the Trustee within ten days of the Issuer obtaining knowledge of any
Default or Event of Default (provided that the Issuer shall provide such
certification at least annually whether or not it knows of any Default or
Event of Default) that has occurred and, if applicable, describe such
Default or Event of Default and the status thereof.
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified
in clause (5) or (6) above) occurs and is continuing, then the Trustee or
the Holders of not less than 25% in aggregate principal amount of the then
outstanding Securities may declare the unpaid principal of, premium, if
any, and accrued and unpaid interest on, all the Securities then
outstanding to be immediately due and payable, by notice in writing to the
Company (and to the Trustee, if given by Holders) specifying the respective
Event(s) of Default and that it is a "notice of acceleration" and upon such
declaration such principal amount, premium, if any, and accrued and unpaid
interest will become immediately due and payable. If an Event of Default
specified in clause (5) or (6) above occurs and is continuing, then all
unpaid principal of, and premium, if any, and accrued and unpaid interest
on, the Securities then outstanding will ipso facto become and be
immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to
the Securities as described in the preceding paragraph, the Holders of a
majority in principal amount of the Securities then outstanding may rescind
and cancel such declaration and its consequences (a) if the rescission
would not conflict with any judgment or decree, (b) if all existing Events
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of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of the acceleration, (c) to the
extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due
otherwise than by such declaration of acceleration, has been paid, (d) if
the Company has paid the Trustee its reasonable compensation and reimbursed
the Trustee for its expenses, disbursements and advances and (e) in the
event of the cure or waiver of an Event of Default of the type described in
clauses (5) and (6) of the description of Events of Default above, the
Trustee shall have received an Officers' Certificate and an Opinion of
Counsel that such Event of Default has been cured or waived. No such
rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities, this Indenture or the
Guarantee.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default.
No remedy is exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Sections 6.02, 6.07 and 9.02, the Holders of not less
than a majority in principal amount of the outstanding Securities by
written notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a Default in the payment of principal
of, premium or interest on any Security as specified in clauses (1) and (2)
of Section 6.01. 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 upon which the Trustee
may conclusively rely. When a Default or Event of Default is waived, it is
cured and ceases.
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SECTION 6.05. CONTROL BY MAJORITY.
The Holders of not less than a majority in aggregate principal
amount of the outstanding Securities may 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. Subject to Section
7.01, however, the Trustee may refuse to follow any direction that
conflicts with any law or this Indenture, that the Trustee determines may
be unduly prejudicial to the rights of another Holder, or that may involve
the Trustee 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 from the Company satisfactory to it in its sole discretion
against any fees, loss, liability, cost or expense caused by taking such
action or following such direction.
SECTION 6.06. LIMITATION ON SUITS.
A Holder may not pursue any remedy with respect to this
Indenture, the Securities or the Guarantee unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holder or Holders of at least 25% in principal amount
of the outstanding Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 30
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 30-day period the Holder or Holders of a
majority in principal amount of the outstanding Securities do not give the
Trustee a direction which, in the opinion of the Trustee, is inconsistent
with the request.
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A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other
Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal of, premium and interest on a
Security, on or after the respective due dates expressed in such Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal, premium or
interest specified in clause (1) or (2) of Section 6.01 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company, the Guarantor or any other obligor
on the Securities for the whole amount of principal and accrued interest
remaining unpaid, together with interest on overdue principal and, to the
extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the
Securities and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 7.07.
SECTION 6.09. 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,
legal fees, disbursements and advances of the Trustee, its agents,
nominees, custodians, counsel, accountants and experts) and the Holders
allowed in any judicial proceedings relating to the Company, its creditors
or its property and the Guarantor or any other obligor upon the Notes, its
respective creditors or its respective property, and shall be entitled and
empowered to collect and receive any monies or securities or other property
payable or deliverable upon the conversion or exchange of the Securities or
upon any such claims and to distribute the same, and any Custodian in any
such judicial proceedings is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to
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the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, legal fees,
disbursements and advances of the Trustee, its agents, nominees, custodians
and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities 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 proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts owing under Section 7.07;
Second: if the Holders are forced to proceed against the
Company, the Guarantor or any other obligor on the Securities
directly without the Trustee, to the Holders for their collection
costs;
Third: to the Holders for amounts due and unpaid on the
Securities for principal, premium and interest, ratably, without
preference or priority of any kind, according to the amounts due
and payable on the Securities for principal, premium and
interest, respectively; and
Fourth: to the Company or the Guarantor, as their respective
interests may appear.
The Trustee, upon prior notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section
6.10; PROVIDED, HOWEVER, that the failure to give any such notice shall not
affect the establishment of such record date or payment date or any payment
to Holders pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing
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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 6.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07, or a suit by a Holder or Holders of more than 10% in principal amount
of the outstanding Securities.
SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every case, subject
to any determination in such proceeding, the Company, the Guarantor, the
Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default actually known to a Responsible
Officer of the Trustee 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 their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his own
affairs. Subject to such provisions, the Trustee shall be under no
obligation to exercise any of its rights or powers under this Indenture at
the request, order or direction of any of the Holders of Securities, unless
they shall have offered to the Trustee security and indemnity satisfactory
to it in its sole discretion.
(b) Except during the continuance of an Event of Default
actually known to a Responsible Officer of the Trustee:
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(1) The Trustee need perform only those duties as are
specifically set forth herein and no others and no implied
covenants or obligations shall be read into 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 and such other documents delivered to it pursuant to
Section 11.04 and Section 11.05 hereof furnished to the Trustee
and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from 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 Responsible Officer of the Trustee,
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 an
indemnity satisfactory to it in its sole discretion against such risk,
liability, loss, fee or expense which might be incurred by it in compliance
with such request or direction.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to this Section 7.01.
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(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be protected
in acting or refraining from acting on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and an Opinion of Counsel, which shall
conform to the provisions of Section 11.04 and Section 11.05. The Trustee
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 act through its attorneys, agents,
custodians and nominees and shall not be responsible for the misconduct or
negligence of any attorney, agent, custodian or nominee (other than such a
person who is an employee of the Trustee) appointed 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) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the fees, costs, expenses and liabilities
which may be incurred therein or thereby.
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(g) Except with respect to Section 4.01, the Trustee shall not
have any duty as to inquire as to the performance by the Company of its
covenants or obligations under this Indenture. The Trustee shall not be
deemed to have notice or any knowledge of any matter (including without
limitation Defaults or Events of Default) unless a Responsible Officer
assigned to and working in the Trustee's Corporate Trust Administration has
actual knowledge thereof or unless written notice thereof is received by
the Trustee, attention: Corporate Trust Administration and such notice
references the Securities generally, the Company or this Indenture.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company,
its Subsidiaries, the Guarantor and their respective Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee must comply with Sections 7.10
and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, it
shall not be accountable for the Company's use of the proceeds from the
Securities, it shall not be responsible for the use and application of any
money received by any Paying Agent other than the Trustee and it shall not
be responsible for any statement of the Company in this Indenture or any
document issued in connection with the sale of Securities (including
without limitation any preliminary or final offering memorandum) or any
statement in the Securities other than the Trustee's certificate of
authentication. The Trustee makes no representations with respect to the
effectiveness or adequacy of this Indenture. The Trustee shall not be
responsible for independently ascertaining or maintaining such validity, if
any, and shall be fully protected in relying upon certificates and opinions
delivered to it in accordance with the terms of this Indenture.
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SECTION 7.05. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and
a Responsible Officer of the Trustee receives actual notice of such event,
the Trustee shall mail to each Holder, as their names and addresses appear
on the Holder list described in Section 2.05, notice of the uncured Default
or Event of Default within 30 days after the Trustee receives such notice.
Except in the case of a Default or an Event of Default in payment of
principal of, premium or interest on, any Security, including the failure
to make payment on (i) the Change of Control Payment Date pursuant to a
Change of Control Offer or (ii) the Net Proceeds Offer Payment Date
pursuant to a Net Proceeds Offer, the Trustee may withhold the notice if
and so long as the board of directors, the executive committee, a trust
committee of directors or a committee of Responsible Officers of the
Trustee in good faith determines that withholding the notice is in the
interest of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
This Section 7.06 shall not be operative as a part of this
Indenture until this Indenture is qualified under the TIA, and, until such
qualification, this Indenture shall be construed as if this Section 7.06
were not contained herein.
Within 60 days after each May 15 of each year beginning with
1998, the Trustee shall, to the extent that any of the events described in
TIA Section 313(a) occurred within the previous twelve months, but not
otherwise, mail to each Holder a brief report dated as of such date that
complies with TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b), 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders shall
be mailed to the Company and filed with the SEC and each securities
exchange, if any, on which the Securities are listed.
The Company shall notify a Responsible Officer of the Trustee if
the Securities become listed on any securities exchange or of any delisting
thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company and the Guarantor shall pay to the Trustee from time
to time reasonable compensation for its services hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee
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of an express trust. The Company and the Guarantor shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and
advances (including reasonable fees and expenses of counsel) incurred or
made by it in addition to the compensation for its services, except any
such disbursements, expenses and advances as may be attributable to the
Trustee's negligence or bad faith. Such expenses shall include the
reasonable compensation, legal fees, disbursements and expenses of the
Trustee's agents, accountants, experts, nominees, custodians and counsel
and any taxes or other expenses incurred by a trust created pursuant to
Section 8.01 hereof.
The Company and the Guarantor shall indemnify the Trustee, its
directors, officers and employees and each predecessor trustee for, and
hold it harmless against, any loss, liability or expense incurred by the
Trustee without negligence or bad faith on its part arising out of or in
connection with the administration of this trust and its duties under this
Indenture, including the reasonable expenses and attorneys' fees of
defending itself against any claim of liability arising hereunder. The
Trustee shall notify the Company and the Guarantor promptly of any claim
asserted against the Trustee for which it may seek indemnity. However, the
failure by the Trustee to so notify the Company or the Guarantor shall not
relieve the Company or the Guarantor of its respective obligations
hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense (and may employ its own counsel) at the Company's
expense. The Company need not pay for any settlement made without its
written consent, which consent shall not be unreasonably withheld or
delayed. Neither the Company nor the Guarantor needs to reimburse any
expense or indemnify against any loss or liability incurred by the Trustee
as a result of the violation of this Indenture by the Trustee if such
violation arose from the Trustee's negligence or bad faith.
To secure the Company's and the Guarantor's payment obligations
in this Section 7.07, the Trustee shall have a senior claim and lien prior
to the Securities against all money or property held or collected by the
Trustee, in its capacity as Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in clause (5) or (6) of Section 6.01 occurs, the
expenses (including the reasonable fees and expenses of its agents and
counsel) and the compensation for the services shall be preferred over the
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status of the Holders in a proceeding under any Bankruptcy Law and are
intended to constitute expenses of administration under any Bankruptcy Law.
The Company's obligations under this Section 7.07 and any claim arising
hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Eight and any
rejection or termination 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
Securities may remove the Trustee by so notifying the Company and the
Trustee in writing and may appoint a successor trustee with the Company's
consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes legally incapable of acting with
respect to its duties hereunder.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder
of such event and 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 Securities 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 all the rights, powers and
duties of the Trustee under this Indenture; PROVIDED, HOWEVER, that no
Trustee under this Indenture shall be liable for any act or omission of any
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successor Trustee. A successor Trustee shall mail notice of its succession
to each Holder.
If a successor Trustee does not take office within 30 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 Securities may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder who
has been a Holder for at least six months 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 shall continue
for the benefit of the retiring Trustee and the Company shall pay to any
such replaced or removed Trustee all amounts owed under Section 7.07 upon
such replacement or removal.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the resulting, surviving or transferee corporation
without any further act shall, if such resulting, surviving or transferee
corporation is otherwise eligible hereunder, be the successor Trustee. In
case any Securities shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1) and 310(a)(5). 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. The Trustee shall
comply with TIA Section 310(b); PROVIDED, HOWEVERr, 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.
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee, in its capacity as Trustee hereunder, 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.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) The Company may, at its option by Board Resolution, at any
time, with respect to the Securities, elect to have either paragraph (b) or
paragraph (c) below be applied to the outstanding Securities upon
compliance with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (b), the Company shall be deemed to
have been released and discharged from its obligations with respect to the
outstanding Securities on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be "outstanding" only for
the purposes of the Sections and matters under this Indenture referred to
in (i) and (ii) below, and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned, except for the following, which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of the Holders of
outstanding Securities to receive payments in respect of the principal of,
premium, if any, and interest on such Securities when such payments are
due, (ii) the Company's obligations to issue temporary Securities, register
the transfer or exchange of any Securities, replace mutilated, destroyed,
lost or stolen Securities and maintain an office or agency for payments in
respect of the Securities, (iii) the rights, powers, trusts, duties and
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immunities of the Trustee, and (iv) the Legal Defeasance provisions of this
Indenture. The Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) below
with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (c), the Company and the Guarantor
shall be released and discharged from their respective obligations under
any covenant contained in Article Five and in Sections 4.03 through 4.24
with respect to the outstanding Securities on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Securities shall thereafter be deemed to be not
"outstanding" for the purpose of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For this purpose, such
Covenant Defeasance means that, with respect to the outstanding Securities,
the Company and the Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of
Default under Section 6.01(3), nor shall any event referred to in Section
6.01(4) or (7) thereafter constitute a Default or an Event of Default
thereunder but, except as specified above, the remainder of this Indenture
and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of
either paragraph (b) or paragraph (c) above to the outstanding Securities:
(1) The Company shall have irrevocably deposited in trust with
the Trustee, pursuant to an irrevocable trust and security
agreement for the benefit of Holders in form and substance
satisfactory to the Trustee, U.S. Legal Tender or direct non-
callable obligations of, or non-callable obligations guaranteed
by, the United States of America for the payment of which
obligation or guarantee the full faith and credit of the United
States of America is pledged ("U.S. Government Obligations")
maturing as to principal and interest in such amounts and at such
times as are sufficient, without consideration of the
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reinvestment of such interest and principal and after payment of
all Federal, state and local taxes or other charges or
assessments in respect thereof payable by the Trustee, in the
opinion of a nationally recognized firm of Independent public
accountants expressed in a written certification thereof (in form
and substance reasonably satisfactory to the Trustee) delivered
to the Trustee, to pay the principal of, premium, if any, and
interest on all the outstanding Securities on the dates on which
any such payments are due and payable in accordance with the
terms of this Indenture and of the Securities;
(2) Such deposits shall not cause on the date of the deposit
the Trustee to have a conflicting interest as defined in and for
purposes of the TIA;
(3) The Trustee shall have received Officers' Certificates
stating that No Default of Event of Default or event which with
notice or lapse of time or both would become a Default or an
Event of Default with respect to the Securities shall have
occurred and be continuing on the date of such deposit or,
insofar as Section 6.01(5) or (6) is concerned, at any time
during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officers' Certificates
stating that such Legal Defeasance or Covenant Defeasance will
not result in a Default under this Indenture or a breach or
violation of, or constitute a default under, any other material
instrument or agreement to which the Guarantor or any of its
Subsidiaries is a party or by which it or its property is bound;
(5) (i) In the event the Company elects to exercise its option
under paragraph (b) hereof, the Company shall deliver to the
Trustee an Opinion of Counsel in the United States, in form and
substance reasonably satisfactory to the Trustee to the effect
that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since
the Issue Date, 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 state that Holders of the
Securities will not recognize income gain or loss for federal
income tax purposes as a result of such deposit and the
defeasance contemplated hereby and will be subject to federal
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income taxes in the same amounts, the same manner and at the same
times as would have been the case if such deposit and defeasance
had not occurred, or (ii) in the event the Company elects to
exercise its options under paragraph (c) hereof, the Company
shall deliver to the Trustee an Opinion of Counsel in the United
States, in form and substance reasonably satisfactory to the
Trustee, to the effect that, Holders of the Securities will not
recognize income, gain or loss for federal income tax purposes as
a result of such deposit and the defeasance contemplated hereby
and will be subject to federal income tax in the same amounts and
in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion
of Counsel in form and substance reasonably satisfactory to the
Trustee stating that as a result of the Legal Defeasance or
Covenant Defeasance, neither the Trustee nor the trust have
become or are deemed to have become an "investment company" under
the Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an
Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that the deposit under
clause (1) was not made by the Company, the Guarantor or any
Subsidiary of the Guarantor with the intent of defeating,
hindering, delaying or defrauding any other creditors of the
Company, the Guarantor, or any such Subsidiary;
(8) The Company shall have delivered to the Trustee an Opinion
of Counsel, in form and substance reasonably satisfactory to the
Trustee, to the effect that (A) the trust funds deposited
pursuant to clause (1) will not be subject to the rights of
holders of Indebtedness of the Company or the Guarantor other
than the Securities 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 Securities is an
insider of the Company, after the 91st day following the deposit,
the trust funds will not be subject to any applicable bankruptcy,
insolvency, reorganization or similar law affecting creditors'
rights generally; and
(9) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
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conditions precedent provided for or relating to the Legal
Defeasance or Covenant Defeasance contemplated by this Section
8.01 have been complied with; PROVIDED, HOWEVER, that no deposit
under clause (1) above shall be effective to terminate the
obligations of the Company under the Securities or this Indenture
prior to 90 days following any such deposit; and
(10) The Company shall have paid all amounts owing to the
Trustee pursuant to Section 7.07.
Notwithstanding the foregoing, the Opinion of Counsel required by
paragraph (5) above need not be delivered if all Securities not theretofore
delivered to the Trustee for cancellation (i) have become due and payable,
(ii) will become due and payable on the maturity date for the Securities
within one year, or (iii) are to be called for redemption within one year
under irrevocable 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.
In the event all or any portion of the Securities are to be
redeemed through such irrevocable trust, the Company must make irrevocable
arrangements satisfactory to the Trustee, at the time of such deposit, for
the giving of the notice of such redemption or redemptions by the Trustee
in the name and at the expense of the Company.
SECTION 8.02. SATISFACTION AND DISCHARGE.
In addition to the Company's rights under Section 8.01, the
Company may terminate all of its obligations under this Indenture (subject
to Section 8.03) when:
(1) all Securities theretofore authenticated and delivered
(other than Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.07) have been delivered
to the Trustee for cancellation; or
(2) all Securities not theretofore delivered to the Trustee
for cancellation (except lost, stolen or destroyed Securities which have
been replaced or paid) have been called for redemption pursuant to the
terms of the Securities or have otherwise become due and payable and the
Company 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 Securities not heretofore delivered to the Trustee for
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cancellation, for principal of, premium, if any, and interest on the
Securities to the date of deposit together with irrevocable instructions
from the Company directing the Trustee to apply such funds to the payment
thereof at maturity or redemption, as the case may be; and
(3) the Company has paid or caused to be paid all other sums
payable hereunder and under the Securities by the Company; and
(4) there exists no Default or Event of Default under this
Indenture; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the satisfaction and discharge of
this Indenture have been complied with; and
(6) the Company shall have paid all amounts owing to the
Trustee pursuant to Section 7.07.
SECTION 8.03. SURVIVAL OF CERTAIN OBLIGATIONS.
Notwithstanding the satisfaction and discharge of this Indenture
and of the Securities referred to in Section 8.01 or 8.02, the respective
obligations of the Company, the Guarantor and the Trustee under Sections
2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.12, 2.13, Article Three, 4.01,
4.02 and 6.07, Article Seven and Sections 8.05, 8.06 and 8.07 shall survive
until the Securities are no longer outstanding, and thereafter the
obligations of the Company, the Guarantor and the Trustee under Sections
7.07, 8.05, 8.06 and 8.07 shall survive. Nothing contained in this Article
Eight shall abrogate any of the rights, obligations or duties of the
Trustee under this Indenture.
SECTION 8.04. ACKNOWLEDGEMENT OF DISCHARGE BY TRUSTEE.
Subject to Section 8.07, after (i) the conditions of Section 8.01
or 8.02 have been satisfied, (ii) the Company has paid or caused to be paid
all other sums payable hereunder by the Company and (iii) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent referred to in clause
(i) above relating to the satisfaction and discharge of this Indenture have
been complied with, the Trustee upon written request shall acknowledge in
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writing the discharge of the Company's obligations under this Indenture
except for those surviving obligations specified in Section 8.03.
SECTION 8.05. APPLICATION OF TRUSTE ASSETS.
The Trustee shall hold any U.S. Legal Tender or U.S. Government
Obligations deposited with it in the irrevocable trust established pursuant
to Sections 8.01 and 8.02. The Trustee shall apply the deposited U.S.
Legal Tender or the U.S. Government Obligations, together with earnings
thereon, through the Paying Agent, in accordance with this Indenture and
the terms of the irrevocable trust agreement established pursuant to
Section 8.01, to the payment of principal of and interest on the
Securities. The U.S. Legal Tender or U.S. Government Obligations so held
in trust and deposited with the Trustee in compliance with Section 8.01 or
Section 8.02 shall not be part of the trust estate under this Indenture,
but shall constitute a separate trust fund for the benefit of all Holders
entitled thereto.
SECTION 8.06. REPAYMENT TO THE COMPANY OR THE GUARANTOR; UNCLAIMED
MONEY.
Subject to Sections 7.07, 8.01 and 8.02, the Trustee shall
promptly pay to the Company, or if deposited with the Trustee by the
Guarantor, to the Guarantor, upon receipt by the Trustee of an Officers'
Certificate, any excess money, determined in accordance with Section 8.01,
held by it at any time. The Trustee and the Paying Agent shall pay to the
Company or the Guarantor, as the case may be, upon receipt by the Trustee
or the Paying Agent, as the case may be, of an Officers' Certificate, any
money held by it for the payment of principal, premium, if any, or interest
that remains unclaimed for two years after payment to the Holders is
required; PROVIDED, HOWEVER, that the Trustee and the Paying Agent before
being required to make any payment may, but need not, at the expense of the
Company cause to be published once in a newspaper of general circulation in
The City of New York or mail to each Holder entitled to such money notice
that such money remains unclaimed and that after a date specified therein
(which shall not be less than 30 days from the date of such mailing or
publication), which shall be at least 2 years from the date of such
publication or mailing, any unclaimed balance of such money then remaining
will be repaid to the Company. After payment to the Company or the
Guarantor, as the case may be, Holders entitled to money must look solely
to the Company and the Guarantor for payment as general creditors unless an
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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 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations deposited with it in the irrevocable
trust established pursuant to Section 8.01 or in accordance with Section
8.02 in accordance with this Indenture 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, then and
only then the Company's and the Guarantor's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had been made pursuant to Section 8.01 or Section 8.02, as
applicable, of this Indenture until such time as the Trustee is permitted
to apply all such U.S. Legal Tender or U.S. Government Obligations in
accordance with this Indenture; PROVIDED, HOWEVER, that if the Company or
the Guarantor, as the case may be, have made any payment of principal of,
premium, if any, or interest on any Securities because of the reinstatement
of their obligations, the Company or the Guarantor, as the case may be,
shall be, subrogated to the rights of the holders of such Securities to
receive such payment from the U.S. Legal Tender or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and Guarantor (when authorized by Board Resolutions),
and the Trustee, together, may amend or supplement this Indenture or the
Securities without notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency so long as
such change does not adversely affect the rights of any of the Holders in
any material respect;
(2) to evidence the succession in accordance with Article Five
hereof of another Person to the Company or the Guarantor and the assumption
by any such successor of the covenants of the Company or the Guarantor
herein and in the Securities or the Guarantee, as the case may be;
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(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(4) to make any other change that does not materially
adversely affect the rights of any Holders hereunder; or
(5) to comply with any requirements of the SEC in connection
with the qualification of this Indenture under the TIA.
PROVIDED that each of the Company and the Guarantor has delivered to the
Trustee an Opinion of Counsel and an Officers' Certificate, each stating
that such amendment or supplement complies with the provisions of this
Section 9.01. In formulating its opinion on such matters, the Trustee will
be entitled to rely on such evidence as it deems appropriate including,
without limitation, an Opinion of Counsel.
SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.07, the Company and the Guarantor (when
authorized by Board Resolutions) and the Trustee, together, with the writ-
ten consent of the Holder or Holders of at least a majority in aggregate
principal amount of the outstanding Securities, may amend or supplement
this Indenture, the Securities and the Guarantee without notice to any
other Holders. Subject to Section 6.07, the Holder or Holders of a majori-
ty in aggregate principal amount of the outstanding Securities may waive
compliance by the Company or the Guarantor with any provision of this In-
denture or the Securities without notice to any other Holder. Without the
consent of each Holder affected, however, no amendment, supplement or waiv-
er, including a waiver pursuant to Section 6.04, may:
(1) reduce the principal amount of Securities whose Holders
must consent to an amendment, supplement or waiver of any provision of this
Indenture, the Securities or the Guarantee;
(2) reduce the rate of or change or have the effect of
changing the time for payment of interest, including default interest, on
any Security;
(3) reduce the principal amount of any Security;
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(4) change or have the effect of changing the Final Maturity
Date of any Security, or alter the redemption or repurchase provisions
contained in this Indenture or the Securities in a manner adverse to any
Holder;
(5) make any change in provisions of this Indenture protecting
the right of each Holder to receive payment of principal of and interest on
such Security on or after the due date thereof or to bring suit to enforce
such payment, or permitting Holders of a majority in principal amount of
the Securities to waive Defaults or Events of Default;
(6) make any changes in Section 4.22, 6.04, 6.07 or this
Section 9.02;
(7) make the principal of, premium or the interest on any
Security payable in money other than as provided for in this Indenture as
in effect on the date hereof;
(8) modify or change any provision of this Indenture or the
related definitions affecting the ranking of the Securities or the Guaran-
tee, in each case in a manner adverse to the Holders;
(9) amend, modify or change in any material respect the
obligation of the Company to make or consummate a Change of Control Offer
after the occurrence of a Change of Control or make or consummate a Net
Proceeds Offer with respect to any Asset Sale that has been consummated or
waive any default in the performance thereof or modify any of the
provisions or definitions with respect to any such offers;
(10) release the Guarantor from any of its obligations under
the Guarantee or this Indenture otherwise than in accordance with the terms
of this Indenture; or
(11) make any change that would adversely affect the rights of
Holders to receive Additional Amounts.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure
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of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.03. COMPLIANCE WITH TIA.
From the date on which this Indenture is qualified under the TIA,
every amendment, waiver or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement pursuant to Section 9.02
becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security,
even if notation of the consent is not made on any Security. However, any
such Holder or subsequent Holder may revoke the consent as to his Security
or portion of his Security 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 Securities
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 (1) through (11) of Section 9.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security;
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 Security, on or
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after the respective due dates expressed in such Security, or to bring suit
for the enforcement of any such payment on or after such respective dates
without the consent of such Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it
to the Trustee. The Trustee may place an appropriate notation on the
Security about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Security shall not affect the
validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; PROVIDED that 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. The Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate each stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article Nine is authorized or permitted
by this Indenture and constituted the legal, valid and binding obligations
of the Company and the Guarantor enforceable against each of them in
accordance with its terms. Such Opinion of Counsel shall be at the expense
of the Company, and the Trustee shall have a lien under Section 7.07 for
any such expense.
ARTICLE TEN
GUARANTEE
SECTION 10.01. UNCONDITIONAL GUARANTEE.
The Guarantor agrees to unconditionally guarantee to each Holder
of a Security authenticated and delivered by the Trustee, and to the
Trustee and its successors and assigns, that: (i) the principal of,
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premium and interest on the Securities will be promptly paid in full when
due, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise and interest on the overdue principal, if any,
and interest on any interest, to the extent lawful, of the Securities and
all other Obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (ii) in case of any
extension of time of payment or renewal of any Securities or of any such
other Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject
to any applicable grace period, whether at stated maturity, by acceleration
or otherwise. The Guarantor agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability
of the Securities or this Indenture or any security from time to time
granted in respect thereof, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Securities with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of the
Guarantor. The Guarantor waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that the Guarantee
will not be discharged except by complete performance of the obligations
contained in the Securities, this Indenture and the Guarantee. If any
Holder or the Trustee is required by any court or otherwise to return to
the Company or any custodian, trustee, liquidator or other similar official
acting in relation to the Company, any amount paid by the Company to the
Trustee or such Holder, the Guarantee to the extent theretofore discharged,
shall be reinstated in full force and effect. The Guarantor further agrees
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six for the purposes of
the Guarantee notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed
hereby, and (y) in the event of any acceleration of such obligations as
provided in Article Six, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantor for the purpose of
its Guarantee.
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SECTION 10.02. SEVERABILITY.
In case any provision of the Guarantee shall be invalid, illegal
or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.03. WAIVER OF SUBROGATION.
Until all Guarantee Obligations are paid in full, the Guarantor
hereby irrevocably waives any claims or other rights which it may now or
hereafter acquire against the Company that arise from the existence,
payment, performance or enforcement of the Guarantor's obligations under
the Guarantee and this Indenture, including, without limitation, any right
of subrogation, reimbursement, exoneration, indemnification, and any right
to participate in any claim or remedy of any Holder of Securities against
the Company, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including, without limitation,
the right to take or receive from the Company, directly or indirectly, in
cash or other property or by set-off or in any other manner, payment or
security on account of such claim or other rights. If any amount shall be
paid to the Guarantor in violation of the preceding sentence and the
Securities shall not have been paid in full, such amount shall have been
deemed to have been paid to the Guarantor for the benefit of, and held in
trust for the benefit of, the Holders of the Securities, and shall
forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Securities, in accordance with the terms of
this Indenture. The Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 10.03 is knowingly
made in contemplation of such benefits.
SECTION 10.04. EXECUTION OF GUARANTEES.
To evidence its guarantee to the Holders set forth in this
Article Ten, the Guarantor shall execute a Guarantee in substantially the
form set forth on the form of the Securities attached hereto, which shall
be endorsed on each Security ordered to be authenticated and delivered by
the Trustee. The Guarantor agrees that its Guarantee set forth in this
Article Ten shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of the Guarantee. The
Guarantee shall be signed on behalf of the Guarantor by two Officers, or an
Officer and an Assistant Secretary or one Officer shall sign and one
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Officer or an Assistant Secretary (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions) shall attest to
the Guarantee prior to the authentication of the Security on which it is
endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee on behalf of the Guarantor. Such signatures upon the Guarantee
may be by manual or facsimile signature of such officers and may be
imprinted or otherwise reproduced on the Guarantee, and in case any such
officer who shall have signed the Guarantee shall cease to be such officer
before the Security on which the Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company,
such Security nevertheless may be authenticated and delivered or disposed
of as though the person who signed the Guarantee had not ceased to be such
officer of the Guarantor.
SECTION 10.05. WAIVER OF STAY, EXTENSTION OR USURY LAWS.
The Guarantor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, 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 that would prohibit or forgive the
Guarantor from performing its Guarantee 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 it
may lawfully do so) the Guarantor hereby expressly waives 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 10.06. PAYMENTS OF ADDITIONAL AMOUNTS.
The Guarantor agrees that all payments made by the Guarantor in
respect of its Guarantee will be made free and clear of and without
withholding or deduction for or on account of any present or future Taxes,
unless the Guarantor is required to withhold or deduct Taxes by law or by
the interpretation or administration thereof. If the 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 Guarantee, the Guarantor will pay
such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary so that
the net amount received by each Holder of Securities (including Additional
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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 (an "EXCLUDED HOLDER") (i) with which
the Guarantor does not deal at arm's length (within the meaning of the
Income Tax Act (Canada)) at the time of making such payment or at the time
that any such payment is deemed to be paid or credited or (ii) which is
subject to Taxes by reason of its being connected with Canada or any
province or territory thereof otherwise than by the mere acquisition,
holding or disposition of the Securities or the receipt of payments
thereunder. The Guarantor will also (i) make such withholding or deduction
and (ii) remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law. The Guarantor will furnish to
the holders of the Securities that are outstanding on the date of any
withholding or deduction, within 30 days after the date of the payment of
any Taxes due pursuant to applicable law, certified copies of tax receipts
evidencing such payment by the Guarantor.
The Guarantor will indemnify and hold harmless each Holder of
Securities (other than an Excluded Holder) and, upon written request of any
Holder of Securities (other than an Excluded Holder), reimburse each such
Holder, for the amount of (i) any such Taxes so levied or imposed and paid
by such Holder as a result of payments made under or with respect to the
Guarantee; and (ii) any Taxes so levied or imposed with respect to any
reimbursement under the foregoing clause (i) so that the net amount
received by such Holder 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.
At least 30 days prior to each date on which any payment under or
with respect to the Securities is due and payable, if the Guarantor will be
obligated to pay Additional Amounts with respect to such payment, the
Guarantor will deliver to the Trustee an Officers' Certificate stating the
fact that such Additional Amounts will be payable and specifying the
amounts so payable and will set forth such other information necessary to
enable the Trustee to pay such Additional Amounts to Holders of Securities
on the payment date. Whenever in this Indenture there is mentioned, in any
context, principal, premium, if any, interest or any other amount payable
under or with respect to any Security, such mention shall be deemed to
include the payment of Additional Amounts to the extent that, in such
context, Additional Amounts are, were or would be payable in respect
thereof.
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ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of Section 318(c) of the
TIA, the imposed duties 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 or the Guarantor:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇)-▇▇▇-▇▇▇▇
Telephone: (▇▇▇)-▇▇▇-▇▇▇▇
if to the Trustee:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Each of the Company, the Guarantor and the Trustee by written
notice to each other such person may designate additional or different
addresses for notices to such person. Any notice or communication to the
Company or the Guarantor 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 registered or certified 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).
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Any notice or communication mailed to a Holder shall be mailed to
him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be
sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders. Except for a notice to the Trustee, which is deemed given only
when received, 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, the Securities
or the Guarantee. The Company, the Trustee, the Registrar and any other
Person 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 at the request of the Trustee:
(1) an Officers' Certificate, in form and substance
satisfactory to the Trustee, 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 stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the
Officers' Certificate required by Section 4.08, shall include:
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(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(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, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
PROVIDED, HOWEVER, that with respect to matters of fact an
Opinion of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 11.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee, Paying Agent or Registrar may make reasonable rules
for its functions.
SECTION 11.07. LEGAL HOLIDAYS.
If a payment date is not a Business Day, payment may be made on
the next succeeding day that is a Business Day with the same force and
effect as if made on such payment date.
SECTION 11.08. GOVERNING LAW.
THIS INDENTURE (OTHER THAN ARTICLE TEN) AND THE SECURITIES 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. ARTICLE TEN
AND THE GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF ONTARIO, CANADA EXCEPT THAT UPON A SUBSTITUTION OF AN ASSUMING
PARTY FOR THE GUARANTOR IN A DOMESTICATION EVENT, THE GUARANTEE WILL BE
GOVERNED BY LAWS OF THE STATE OF NEW YORK.
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SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of any of the Company or any of its Subsidiaries or
the Guarantor. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.
SECTION 11.10. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or incorporator, as
such, of the Company or the Guarantor shall not have any liability for any
obligations of the Company or the Guarantor under the Securities, this
Indenture or the Guarantee or for any claim based on, in respect of or by
reason of such obligations or their creations. Each Holder by accepting a
Security waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of the Securities.
SECTION 11.11. SUCCESSORS.
All agreements of the Company and the Guarantor in this
Indenture, the Securities and the Guarantee shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 11.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies of this Indenture.
Each signed copy or counterpart shall be an original, but all of them
together shall represent the same agreement.
SECTION 11.13. SEVERABILITY.
In case any one or more of the provisions in this Indenture, in
the Securities or in the Guarantee shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions shall not in any way be affected or impaired thereby,
it being intended that all of the provisions hereof shall be enforceable to
the full extent permitted by law.
SECTION 11.14. 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
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of reference only, and are not to be considered a part hereof, and shall in
no way modify or restrict any of the terms or provisions hereof.
SECTION 11.15. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES.
By the execution and delivery of this Indenture, the Guarantor
(i) acknowledges that it has, by separate written instrument, designated
and appointed Osler, ▇▇▇▇▇▇ & Harcourt, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇, ▇.▇. ▇▇▇▇▇ ("Osler") as its authorized agent upon which process may
be served in any suit, action or proceeding arising out of or relating to
the Securities or this Indenture that may be instituted in any Federal or
State court in the State of New York, Borough of Manhattan, or brought
under Federal or State securities laws or brought by the Trustee (whether
in its individual capacity or in its capacity as Trustee hereunder), and
acknowledges that Osler has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit, action or proceeding, and
(iii) agrees that service of process upon Osler and written notice of said
service to it (mailed or delivered to it as specified in Section 11.02),
shall be deemed in every respect effective service of process upon it in
any such suit or proceeding. The Guarantor further agrees to take any and
all action, including the execution and filing of any and all such
documents and instruments as may be necessary to continue such designation
and appointment of Osler, in full force and effect so long as this
Indenture shall be in full force and effect; PROVIDED that the Guarantor
may and shall (to the extent Osler ceases to be able to be served on the
basis contemplated herein), by written notice to the Trustee, designate
such additional or alternative agents for service of process under this
Section 11.15 that (i) maintains an office located in the Borough of
Manhattan, The City of New York in the State of New York, (ii) are either
(x) counsel for the Guarantor or (y) a corporate service company which acts
as agent for service of process for other Persons in the ordinary course of
its business and (iii) agrees to act as agent for service of process in
accordance with this Section 11.15. Such notice shall identify the name of
such agent for process and the address of such agent for process in the
Borough of Manhattan, The City of New York, State of New York. Upon the
request of any Holder, the Trustee shall deliver such information to such
Holder. Notwithstanding the foregoing, there shall, at all times, be at
least one agent for service of process for the Guarantor, if any, appointed
and acting in accordance with this Section 11.15.
-97-
To the extent that Guarantor has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid
of execution, execution or otherwise) with respect to itself or its
property, the Guarantor hereby irrevocably waives such immunity in respect
of its obligations under this Indenture and the Guarantee, to the extent
permitted by law.
SECTION 11.16. JUDGMENT CURRENCY.
The Guarantor shall indemnify each of the Holders and the Trustee
against any loss incurred by such party as a result of any judgment or
order being given or made for any amount due under this Indenture and such
judgment or order being expressed and paid in a currency (the "Judgment
Currency") other than United States dollars and as a result of any
variation as between (i) the rate of exchange at which the United States
dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the spot rate of exchange in The City of
New York at which such party on the date of payment of such judgment or
order is able to purchase United States dollars with the amount of the
Judgment Currency actually received by such party. The foregoing indemnity
shall continue in full force and effect notwithstanding any such judgment
or order as aforesaid. The term "spot rate of exchange" shall include any
premiums and costs of exchange payable in connection with the purchase of,
or conversion into, United States dollars.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the date first written above.
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Title: Senior Vice President, Chief
Financial Officer and Treasurer
----------------------------
INTERNATIONAL COMFORT PRODUCTS CORPORATION
By: /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Chief Executive Officer and
President
----------------------------
UNITED STATES TRUST COMPANY OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: Senior Vice President
----------------------------
EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD 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) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION, (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 ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE
A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED
STATES TO PERSONS OTHER THAN U.S. PERSONS IN OFFSHORE TRANSACTIONS MEETING
THE REQUIREMENTS OF RULE 904 UNDER REGULATIONS UNDER THE SECURITIES ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATIONS UNDER THE SECURITIES ACT.
A-1
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC.
8 5/8% Senior Notes
due 2008, Series A
CUSIP No.:
No. [ ] $[ ]
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC., a Delaware
corporation (the "Company", which term includes any successor corporation),
for value received promises to pay to [ ] or
registered assigns, the principal sum of $[ ] Dollars, on May
15, 2008.
Interest Payment Dates: May 15 and November 15, commencing
November 15, 1998
Record Dates: May 1 and November 1
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if
set forth at this place.
A-2
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated:
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
A-3
This is one of the 8 5/8% Senior Notes due 2008, Series A,
described in the within-mentioned Indenture.
Dated:
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
By:
-------------------------------
Authorized Signatory
A-4
(REVERSE OF SECURITY)
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC.
8 5/8% Senior Notes
due 2008, Series A
1. INTEREST.
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC., a Delaware
corporation (the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above. The Company
will pay interest semi-annually on May 15 and November 15 of each year (an
"Interest Payment Date"), commencing November 15, 1998. Interest on the
Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from May 13, 1998*. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to
time on demand at the rate borne by the Securities plus 2% and on overdue
installments of interest (without regard to any applicable grace periods)
to the extent lawful.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except
defaulted interest) to the persons who are the registered Holders at the
close of business on the Record Date immediately preceding the Interest
Payment Date even if the Securities are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private
debts. The Company may deliver any such interest payment to the Paying
Agent or to a Holder at the Holder's registered address.
----------------------------------
* With respect to any Securities that may be issued after the Issue
Date, interest shall accrue from, and this date shall reflect, the
date specified in such Authentication Order for such issuance.
A-5
3. PAYING AGENT AND REGISTRAR.
Initially, United States Trust Company of New York (the
"Trustee") will act as Paying Agent and Registrar. The Company may change
any Paying Agent, Registrar or co-Registrar without notice to the Holders.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as of
May 13, 1998 (the "Indenture"), among the Company, the Guarantor and the
Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the
date on which the Indenture is qualified under the TIA. Notwithstanding
anything to the contrary herein, the Securities are subject to all such
terms, and Holders of Securities are referred to the Indenture and the TIA
for a statement of them. The Securities are limited in aggregate principal
amount to $225,000,000.
5. OPTIONAL REDEMPTION.
The Securities will be redeemable, at the Company's option, in
whole at any time or in part from time to time, on and after May 15, 2003
at the following redemption prices (expressed as percentages of the
principal amount) if redeemed during the twelve-month period commencing on
May 15 of the years set forth below, plus, in each case, accrued interest
thereon to the date of redemption:
YEAR PERCENTAGE
2003 104.313%
2004 102.875%
2005 101.438%
2006 and thereafter 100.000%
6. OPTIONAL REDEMPTION UPON PUBLIC EQUITY OFFERING.
At any time, or from time to time, on or prior to May 15, 2001
the Company may, at its option, use the net cash proceeds contributed or
otherwise made available to it of one or more Public Equity Offerings (as
defined) to redeem up to 35% of the Securities issued at a redemption price
equal to 108.625% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of redemption; PROVIDED that
A-6
at least 65% of the principal amount of Securities originally issued
remains outstanding immediately after giving effect to any such redemption.
In order to effect the foregoing redemption with the net cash proceeds of a
Public Equity Offering, the Company shall make such redemption not later
than 180 days after the consummation of such Public Equity Offering.
As used in the preceding paragraph, "Public Equity Offering" means an
underwritten public offering of Qualified Capital Stock of the Guarantor
pursuant to a registration statement filed with and declared effective by
the SEC in accordance with the Securities Act.
7. NOTICE OF REDEMPTION.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. Securities in denominations
of $1,000 may be redeemed only in whole. The Trustee may select for
redemption portions (equal to $1,000 or any integral multiple thereof) of
the principal of Securities that have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security 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 Security. On and
after the Redemption Date, interest will cease to accrue on Securities or
portions thereof called for redemption, unless the Company defaults in
making the redemption payment.
8. CHANGE OF CONTROL OFFER.
Upon the occurrence of a Change of Control, the Company will be
required to offer to purchase all of the outstanding Securities at a
purchase price equal to 101% of the principal amount thereof plus accrued
and unpaid interest, if any, to the date of repurchase.
9. LIMITATION ON DISPOSITION OF ASSETS.
The Company is, subject to certain conditions, obligated to make
an offer to purchase Securities at 100% of their principal amount plus
accrued and unpaid interest to the date of repurchase with certain net cash
proceeds of certain sales or other dispositions of assets in accordance
with the Indenture.
A-7
10. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection
therewith as permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities or portions thereof selected for
redemption, except the unredeemed portion of any security being redeemed in
part.
11. PERSONS DEEMED OWNERS.
The registered Holder of a Security shall be treated as the owner
of it for all purposes.
12. UNCLAIMED FUNDS.
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee and the Paying Agent will repay the
funds to the Company at its request. After that, all liability of the
Trustee and such Paying Agent with respect to such funds shall cease.
13. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
The Company may be discharged from its obligations under the
Indenture and the Securities except for certain provisions thereof, and may
be discharged from its obligations to comply with certain covenants
contained in the Indenture and the Securities, in each case upon
satisfaction of certain conditions specified in the Indenture.
14. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Securities
may be amended or supplemented with the written consent of the Holders of
at least a majority in aggregate principal amount of the Securities then
outstanding, and any existing Default or Event of Default or compliance
with any provision may be waived with the consent of the Holders of a
majority in aggregate principal amount of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may amend
or supplement the Indenture or the Securities to, among other things, cure
any ambiguity, defect or inconsistency so long as such change does not
adversely affect the rights of any of the Holders in any material respect,
provide for uncertificated Securities in addition to or in place of
certificated
A-8
Securities or comply with any requirements of the SEC in connection with
the qualification of the Indenture under the TIA.
15. RESTRICTIVE COVENANTS.
The Indenture contains certain covenants that, among other
things, limit the ability of the Guarantor and certain of its subsidiaries
to make restricted payments, to incur indebtedness, to create liens, to
issue preferred or other capital stock of subsidiaries, to sell assets, to
permit restrictions on dividends and other payments by subsidiaries to the
Company, to consolidate, merge or sell all or substantially all of its
assets, to engage in transactions with affiliates or to engage in certain
businesses. The limitations are subject to a number of important
qualifications and exceptions.
16. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of Securities
then outstanding may declare all the Securities to be due and payable
immediately in the manner and with the effect provided in the Indenture.
Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Securities unless it has received indemnity
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of
the Securities then outstanding to direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of Securities
notice of any continuing Default or Event of Default (except a Default in
payment of principal, premium or interest, including an accelerated
payment) if it determines that withholding notice is in the interest of the
Holders.
17. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company, the Subsidiaries, the Guarantor and their respective
Affiliates as if it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS.
No stockholder, director, officer, employee or incorporator, as
such, of the Company or the Guarantor shall have any liability for any
liability or obligation of the Company or the Guarantor under the
Securities, the Indenture or the Guarantee or for any claim based on, in
respect of or by reason of,
A-9
such obligations or their creation. Each Holder of a Security by accepting
a Security waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this
Security.
20. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
21. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities as a convenience to the Holders of
the Securities. No representation is made as to the accuracy of such
numbers as printed on the Securities and reliance may be placed only on the
other identification numbers printed hereon.
22. REGISTRATION RIGHTS.
Pursuant to the Registration Rights Agreement, the Company will
be obligated upon the occurrence of certain events to consummate an
exchange offer pursuant to which the Holder of this Security shall have the
right to exchange this Series A Security for the Company's 8 5/8% Senior
Notes due 2008, Series B (the "Series B Securities"), which have been
registered under the Securities Act, in like principal amount and having
terms identical in all material respects as the Series A Securities. The
Holders 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.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made
to: INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: General Counsel.
A-10
GUARANTEE
The undersigned Guarantor (as defined in the Indenture referred
to in the Security upon which this notation is endorsed and each referred
to as the "Guarantor," which term includes any successor person under the
Indenture) unconditionally guarantees on a senior basis (such guarantee by
the Guarantor being referred to herein as a "Guarantee") (i) the due and
punctual payment of the principal of, premium, if any, on and interest on
the Securities, whether at maturity, by acceleration or otherwise, the due
and punctual payment of interest on the overdue principal and interest, if
any, on the Securities, to the extent lawful, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms set forth in Article Ten of the
Indenture and (ii) in case of any extension of time of payment or renewal
of any Securities or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise.
No stockholder, officer, director or incorporator, as such, past,
present or future, of the Guarantor shall have any liability under the
Guarantee by reason of his or its status as such stockholder, officer,
director or incorporator.
This Guarantee shall be governed by and considered in accordance
with the laws of Ontario, Canada.
A-11
The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which the
Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
INTERNATIONAL COMFORT PRODUCTS CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
A-12
ASSIGNMENT FORM
I or we assign and transfer this Security to
---------------------------------------------------------------------------
---------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
---------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or
transferee)
and irrevocably appoint
---------------------------------------------------
agent to transfer this Security 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 Security)
Signature Guarantee:
------------------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
reasonably acceptable to the Trustee)
A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.12 or Section 4.24 of the Indenture, check
the appropriate box:
Section 4.12 [ ] Section 4.24 [ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.12 or Section 4.24 of the Indenture,
state the amount: $
-----------------------
Date: Your Signature:
------------------------- ---------------------------
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guarantee:
------------------------------------------------------
A-14
EXHIBIT B
[FORM OF SERIES B SECURITY]
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC.
8 5/8% Senior Notes
due 2008, Series B
CUSIP No.: [ ]
No. [ ] $[ ]
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC., a Delaware
corporation (the "Company", which term includes any successor corporation),
for value received promises to pay to [ ]
or registered assigns, the principal sum of $[ ]
Dollars, on May 15, 2008.
Interest Payment Dates: May 15 and November 15, commencing
November 15, 1998
Record Dates: May 1 and November 1
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if
set forth at this place.
B-1
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated:
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
B-2
This is one of the 8 5/8% Senior Notes due 2008, Series B,
described in the within-mentioned Indenture.
Dated: May 13, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ TRUST COMPANY OF NEW YORK, as Trustee
By:
------------------------------
Authorized Signatory
B-3
(REVERSE OF SECURITY)
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC.
8 5/8% Senior Notes
due 2008, Series B
1. INTEREST.
INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC., a Delaware
corporation (the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above. The Company
will pay interest semi-annually on May 15 and November 15 of each year (an
"Interest Payment Date"), commencing November 15, 1998. Interest on the
Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from May 13, 1998.* Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to
time on demand at the rate borne by the Securities plus 2% and on overdue
installments of interest (without regard to any applicable graceperiods) to
the extent lawful.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except
defaulted interest) to the persons who are the registered Holders at the
close of business on the Record Date immediately preceding the Interest
Payment Date even if the Securities are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private
debts. The Company may deliver any such interest payment to the Paying
Agent or to a Holder at the Holder's registered address.
----------------------------------
* With respect to any Securities that may be issued after the Issue
Date, interest shall accrue from, and this date shall reflect, the
date specified in such Authentication Order for such issuance.
B-4
3. PAYING AGENT AND REGISTRAR.
Initially, United States Trust Company of New York (the
"Trustee") will act as Paying Agent and Registrar. The Company may change
any Paying Agent, Registrar or co-Registrar without notice to the Holders.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as of
May 13, 1998 (the "Indenture"), among the Company, the Guarantor and the
Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the
date on which the Indenture is qualified under the TIA. Notwithstanding
anything to the contrary herein, the Securities are subject to all such
terms, and Holders of Securities are referred to the Indenture and the TIA
for a statement of them. The Securities are limited in aggregate principal
amount to $225,000,000.
5. OPTIONAL REDEMPTION.
The Securities will be redeemable, at the Company's option, in
whole at any time or in part from time to time, on and after May 15, 2003
at the following redemption prices (expressed as percentages of the
principal amount) if redeemed during the twelve-month period commencing on
May 15 of the years set forth below, plus, in each case, accrued interest
thereon to the date of redemption:
YEAR PERCENTAGE
2003 104.313%
2004 102.875%
2005 101.438%
2006 and thereafter 100.000%
6. OPTIONAL REDEMPTION UPON PUBLIC EQUITY OFFERING.
At any time, or from time to time, on or prior to May 15, 2001,
the Company may, at its option, use the net cash proceeds contributed or
otherwise made available to it of one or more Public Equity Offerings (as
defined) to redeem up to 35% of the Securities issued at a redemption price
equal to 108.625% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of redemption; PROVIDED that
B-5
at least 65% of the principal amount of Securities originally issued
remains outstanding immediately after giving effect to any such redemption.
In order to effect the foregoing redemption with the net cash proceeds of a
Public Equity Offering, the Company shall make such redemption not later
than 180 days after the consummation of such Public Equity Offering.
As used in the preceding paragraph, "Public Equity Offering"
means an underwritten public offering of Qualified Capital Stock of the
Guarantor pursuant to a registration statement filed with and declared
effective by the SEC in accordance with the Securities Act.
7. NOTICE OF REDEMPTION.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. Securities in denominations
of $1,000 may be redeemed only in whole. The Trustee may select for
redemption portions (equal to $1,000 or any integral multiple thereof) of
the principal of Securities that have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security 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 Security. On and
after the Redemption Date, interest will cease to accrue on Securities or
portions thereof called for redemption, unless the Company defaults in
making the redemption payment.
8. CHANGE OF CONTROL OFFER.
Upon the occurrence of a Change of Control, the Company will be
required to offer to purchase all of the outstanding Securities at a
purchase price equal to 101% of the principal amount thereof plus accrued
and unpaid interest, if any, to the date of repurchase.
9. LIMITATION ON DISPOSITION OF ASSETS.
The Company is, subject to certain conditions, obligated to make
an offer to purchase Securities at 100% of their principal amount plus
accrued and unpaid interest to the date of repurchase with certain net cash
proceeds of certain sales or other dispositions of assets in accordance
with the Indenture.
B-6
10. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection
therewith as permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities or portions thereof selected for
redemption, except the unredeemed portion of any security being redeemed in
part.
11. PERSONS DEEMED OWNERS.
The registered Holder of a Security shall be treated as the owner
of it for all purposes.
12. UNCLAIMED FUNDS.
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee and the Paying Agent will repay the
funds to the Company at its request. After that, all liability of the
Trustee and such Paying Agent with respect to such funds shall cease.
13. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
The Company may be discharged from its obligations under the
Indenture and the Securities except for certain provisions thereof, and may
be discharged from its obligations to comply with certain covenants
contained in the Indenture and the Securities, in each case upon
satisfaction of certain conditions specified in the Indenture.
14. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Securities
may be amended or supplemented with the written consent of the Holders of
at least a majority in aggregate principal amount of the Securities then
outstanding, and any existing Default or Event of Default or compliance
with any provision may be waived with the consent of the Holders of a
majority in aggregate principal amount of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may amend
or supplement the Indenture or the Securities to, among other things, cure
any ambiguity, defect or inconsistency so long as such change does not
adversely affect the rights of any of the Holders in any material respect,
provide for uncertificated Securities in addition to or in place of
certificated
B-7
Securities or comply with any requirements of the SEC in connection with
the qualification of the Indenture under the TIA.
15. RESTRICTIVE COVENANTS.
The Indenture contains certain covenants that, among other
things, limit the ability of the Guarantor and certain of its subsidiaries
to make restricted payments, to incur indebtedness, to create liens, to
issue preferred or other capital stock of subsidiaries, to sell assets, to
permit restrictions on dividends and other payments by subsidiaries to the
Company, to consolidate, merge or sell all or substantially all of its
assets, to engage in transactions with affiliates or to engage in certain
businesses. The limitations are subject to a number of important
qualifications and exceptions.
16. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of Securities
then outstanding may declare all the Securities to be due and payable
immediately in the manner and with the effect provided in the Indenture.
Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Securities unless it has received indemnity
satisfactory to it.
The Indenture permits, subject to certain limitations therein
provided, Holders of a majority in aggregate principal amount of the
Securities then outstanding to direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of Securities notice
of any continuing Default or Event of Default (except a Default in payment
of principal, premium or interest, including an accelerated payment) if it
determines that withholding notice is in the interest of the Holders.
17. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company, the Subsidiaries the Guarantor and their respective
Affiliates as if it were not the Trustee.
19. NO RECOURSE AGAINST OTHERS.
No stockholder, director, officer, employee or incorporator, as
such, of the Company or the Guarantor shall have any liability for any
liability or obligation of the Company or the Guarantor under the
Securities, the Indenture or the Guarantee or for any claim based on, in
respect of or by reason of,
B-8
such obligations or their creation. Each Holder of a Security by accepting
a Security waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this
Security.
20. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
21. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities as a convenience to the Holders of
the Securities. No representation is made as to the accuracy of such
numbers as printed on the Securities and reliance may be placed only on the
other identification numbers printed hereon.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made
to: INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: General Counsel.
B-9
GUARANTEE
The undersigned Guarantor (as defined in the Indenture referred
to in the Security upon which this notation is endorsed and each referred
to as the "Guarantor," which term includes any successor person under the
Indenture) unconditionally guarantees on a senior basis (such guarantee by
the Guarantor being referred to herein as a "Guarantee") (i) the due and
punctual payment of the principal of, premium, if any, on and interest on
the Securities, whether at maturity, by acceleration or otherwise, the due
and punctual payment of interest on the overdue principal and interest, if
any, on the Securities, to the extent lawful, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms set forth in Article Ten of the
Indenture and (ii) in case of any extension of time of payment or renewal
of any Securities or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise.
No stockholder, officer, director or incorporator, as such, past, present
or future, of the Guarantor shall have any liability under the Guarantee by
reason of his or its status as such stockholder, officer, director or
incorporator.
B-10
This Guarantee shall be governed by and construed in accordance
with the laws of Ontario, Canada. The Guarantee shall not be valid or
obligatory for any purpose until the certificate of authentication on the
Securities upon which the Guarantee is noted shall have been executed by
the Trustee under the Indenture by the manual signature of one of its
authorized signatories.
INTERNATIONAL COMFORT PRODUCTS CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
B-11
ASSIGNMENT FORM
I or we assign and transfer this Security to
---------------------------------------------------------------------------
---------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
---------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or
transferee)
and irrevocably appoint
---------------------------------------------------
agent to transfer this Security 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 Security)
Signature Guarantee:
-------------------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program
reasonably acceptable to the Trustee)
B-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.12 or Section 4.24 of the Indenture, check
the appropriate box:
Section 4.12 [ ] Section 4.24 [ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.12 or Section 4.24 of the Indenture,
state the amount: $
------------------------
Date: Your Signature:
-------------------- ----------------------------------
(Sign exactly as your name appears
on the other side of this
Security)
Signature Guarantee:
------------------------------------------------------
B-13
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in
the case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY 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. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE,
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR 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.
C-1
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 8 5/8% Senior Notes due 2008, Series A, and 8 5/8%
Senior Notes due 2008, Series B (the "Securities"),
of INTERNATIONAL COMFORT PRODUCTS HOLDINGS, INC.
This Certificate relates to $[ ] principal amount of
Securities held in the form of* [ ] a beneficial interest in a Global
Security or* [ ] Physical Securities by [ ] (the "Transferor").
The Transferor:*
[ ] has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Security held by the
Depositary a Physical Security or Physical Securities in definitive,
registered form of authorized denominations and an aggregate number equal
to its beneficial interest in such Global Security (or the portion thereof
indicated above); or
[ ] has requested that the Registrar by written order to
exchange or register the transfer of a Physical Security or Physical
Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor is
familiar with the Indenture relating to the above captioned Securities and
the restrictions on transfers thereof as provided in Section 2.16 of such
Indenture, and that the transfer of this Securities does not require
registration under the Securities Act of 1933, as amended (the "Act")
because*:
[ ] Such Security is being acquired for the Transferor's own
account, without transfer (in satisfaction of Section 2.16(a)(II)(A) or
Section 2.16(d)(i)(A) of the Indenture).
[ ] Such Security is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the Act), in reliance
on Rule 144A.
[ ] Such Security is being transferred to an institutional
"accredited investor" (within the meaning of subparagraphs (a)(1), (2), (3)
or (7) of Rule 501 under the Act.
D-1
[ ] Such Security is being transferred in reliance on
Regulation S under the Act
[ ] Such Security is being transferred in reliance on Rule 144
under the Act.
[ ] Such Security is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the Act
other than Rule 144A or Rule 144 or Regulation S under the Act to a person
other than an institutional "accredited investor."
----------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------------
[Authorized Signatory]
Date:
-----------------------------
*Check applicable box.
D-2
EXHIBIT E
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
---------------------,------
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: International Comfort Products Holdings, Inc. (the
"Company") Indenture (the "Indenture") relating to 8 5/8%
Senior Notes due 2008, Series A, or 8 5/8% Senior Notes
Due 2008, Series B
Ladies and Gentlemen:
In connection with our proposed purchase of 8 5/8% Senior Notes
due 2008, Series A, or 8 5/8% Senior Notes due 2008, Series B (the
"Securities"), of International Comfort Products Holdings, Inc. (the
"Company"), we confirm that:
1. We have received such information as we deem necessary in
order to make our investment decision.
2. We understand that any subsequent transfer of the Securities
is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Securities except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act").
3. We understand that the offer and sale of the Securities have
not been registered under the Securities Act, and that the Securities may
not be offered or sold within the United States or to, or for the account
or benefit of, U.S. persons except as permitted in the following sentence.
We agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any Securities, we
will do so only (A) to the Company or any subsidiary thereof, (B) inside
the United States in accordance with Rule 144A under the Securities Act to
a "qualified institutional buyer" (as defined therein), (C) inside the
United States to an institutional "accredited investor" (as defined below)
E-1
that, prior to such transfer, furnishes (or has furnished on its behalf by
a U.S. broker-dealer) to the Trustee a signed letter substantially in the
form hereof, (D) outside the United States in accordance with Regulations S
under the Securities Act, (E) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available), or (F)
pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing Securities from us
a notice advising such purchaser that resales of the Securities are
restricted as stated herein.
4. We understand that, on any proposed resale of Securities, we
will be required to furnish to the Trustee and the Company, such
certification, legal opinions and other information as the Trustee and the
Company may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Securities
purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment in the
Securities, and we and any accounts for which we are acting are each able
to bear the economic risk of our or their investment, as the case may be.
6. We are acquiring the Securities purchased by us for our
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
E-2
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
------------------------------
[Authorized Signatory]
E-3
EXHIBIT F
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION
WITH REGULATION S TRANSFERS
---------------------,------
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: International Comfort Products Holdings, Inc. (the
"Company") 8 5/8% Senior Notes due 2008, Series A, and 8
5/8% Senior Notes due 2008, Series B (the "SECURITIES")
Dear Sirs:
In connection with our proposed sale of $[ ] aggregate
principal amount of the Securities, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been pre-
arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
F-1
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Defined terms used
herein without definition have the respective meanings provided in
Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------------
[Authorized Signatory]
F-2